People v. Bergsma

170 A.D.2d 408, 566 N.Y.S.2d 620, 1991 N.Y. App. Div. LEXIS 2408

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Thomas Galligan, J., at hearing; Joan C. Sudolnik, J., at trial and sentence), rendered May 12, 1989, convicting defendant, after a jury trial, of three counts of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the third degree, one count of criminal possession of marijuana in the fourth degree, and one count of criminal possession of a controlled substance in the seventh degree, and sentencing him as a predicate felon to concurrent indeterminate prison terms of from seven and one-half to fifteen years on the sales counts, from four and one-half to nine years on the third degree possession count, and two conditional discharges, unanimously affirmed.

Defendant contends that he was deprived of a fair trial by the cumulative impact of the prosecutor’s summation comments, in which the prosecutor denigrated the defense, vouched for his witnesses, shifted the burden of proof, referred to matters outside the record, instructed the jury on the law, and appealed to juror prejudice and emotion. Most of these challenges to the prosecutor’s comments are unpreserved, and we decline to review in the interest of justice (CPL 470.05 [2]). In the remaining instances, the prejudice to defendant was obviated by the court’s prompt curative instructions. Further, any errors were harmless in light of overwhelming evidence of guilt. Concur—Carro, J. P., Ellerin, Kupferman, Smith and Rubin, JJ.