People v. Alvarez

228 A.D.2d 318, 644 N.Y.2d 228, 644 N.Y.S.2d 228, 1996 N.Y. App. Div. LEXIS 7290

Opinion

Defendant’s general objections to two summation comments made by the prosecutor did not preserve his current claims that the comments in question improperly suggested uncharged crimes and referred to prejudicial facts without support in the record (see, People v Guzman, 186 AD2d 369, lv denied 81 NY2d 789). In any event, the thrust of the prosecutor’s argument was that the prerecorded buy money was not recovered because a "money man” (referred to in the testimony of the arresting officer, as well as in the defense summation) had carried it away and it was within that argument that the comments in question were made. In context, the isolated comments cannot reasonably be viewed as an improper argument urging the jury to consider uncharged crimes, and the overall effect of the prosecutor’s summation was within the range of acceptability (see, People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).

As defendant failed to seek review of his previous adjudications as a second felony offender by direct appeal or appropriate postjudgment motion, the question of whether defendant was improperly sentenced as a second felony offender in this case is "no longer open” (People v Loughlin, 66 NY2d 633, 636). Concur—Murphy, P. J., Milonas, Wallach, Ross and Nardelli, JJ.