People v. Swaby

Dec 2, 2003
Versions:2 A.D.3d 104
767 N.Y.S.2d 606
2003 N.Y. App. Div. LEXIS 12711

Judgment, Supreme Court, Bronx County (John Moore, J.), rendered November 29, 2000, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of four years, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion based on the People’s summation. The challenged remarks generally constituted fair comment on the evidence and reasonable inferences to be drawn therefrom, made in response to defense arguments, and the summation did not deprive defendant of a fair trial (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]). To the extent that any portions of the summation could be viewed as improper, the court’s curative actions sufficed to prevent any prejudice (see People v Santiago, 52 NY2d 865 [1981]).

The court properly ruled that defendant opened the door to uncharged crimes evidence that the court had previously precluded (see People v Melendez, 55 NY2d 445, 451-452 [1982]). Moreover, this evidence was not unduly prejudicial.

*105We perceive no basis for reducing the sentence.

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Buckley, P.J., Saxe, Ellerin, Marlow and Gonzalez, JJ.