People v. Rivera

Mar 18, 2002
Versions:292 A.D.2d 549
739 N.Y.S.2d 279
2002 N.Y. App. Div. LEXIS 2976

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered November 3, 1999, convicting him of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a weapon in the third degree, and criminally using drug paraphernalia in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s challenges to various remarks made by the prosecutor during summation are unpreserved for appellate review, as he failed to raise specific objections to the remarks in question (see, CPL 470.05 [2]). In any event, the challenged remarks were either responsive to the defense counsel’s summation (see, People v Galloway, 54 NY2d 396), within the bounds of permissible rhetorical comment, or constituted fair comment on the evidence (see, People v Ashwal, 39 NY2d 105; People v Russo, 201 AD2d 512, 513, affd 85 NY2d 872). Moreover, since the defendant elected to present a defense, the prosecutor’s comment alluding to the defendant’s failure to call a certain witness on his behalf did not constitute an impermissible effort to shift the burden of proof (see, People v Tankleff, 84 NY2d 992; People v Wood, 271 AD2d 705; People v Guillebeaux, 229 AD2d 399).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80, 83). Florio, J.P., S. Miller, McGinity and Adams, JJ., concur.