People v. Allende

269 A.D.2d 211, 704 N.Y.S.2d 206, 2000 N.Y. App. Div. LEXIS 1314

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered June 18, 1998, convicting defendant, after a jury trial, of criminal sale of a. controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

Defendant’s challenge to the court’s isolated negative remark concerning a defense witness is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the remark, while ill-advised, was rendered harmless by the court’s subsequent instructions (see, People v Diaz, 189 AD2d 574, 575).

The court properly exercised its discretion in denying defendant’s belated motion for a mistrial based upon the prosecutor’s comments in his summation responding to certain arguments made in the defense summation. The court had sustained defendant’s single objection made during the prosecutor’s summation, and the remarks did not deprive him of a fair trial and must be viewed in the context of the accusations in the defense summation (see, People v D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur— Sullivan, J. P., Mazzarelli, Ellerin, Lerner and Friedman, JJ.