People v. Smith

Oct 11, 2011
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The court properly exercised its discretion when it denied defendant‘s mistrial motion. In that motion, defendant asserted that portions of the prosecutor‘s summation shifted the burden of proof. However, in each instance the court had sustained defendant‘s objection and struck the allegedly offending remark. The court‘s curative actions were sufficient to prevent any prejudice (see People v Santiago, 52 NY2d 865 [1981]). In any event, when viewed in context, the challenged remarks were fair responses to defendant‘s summation, and they did not shift the burden of proof.

Defendant‘s remaining challenges to the summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D‘Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Friedman, Catterson, Moskowitz and Abdus-Salaam, JJ.