People v. DeJesus

253 A.D.2d 685, 677 N.Y.S.2d 471, 1998 N.Y. App. Div. LEXIS 9592

Opinion

Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered November 15, 1995, convicting defendant, after a jury trial, of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

The challenged portions of the prosecutor’s summation were fair comments when viewed in light of the entire trial in general and the defense summation in particular (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976).

The court properly exercised its discretion by denying defendant’s request that the court inquire of the jurors as to whether the jury charge had been audible. Near the close of the prosecution’s direct case, the court had specifically instructed the jury that they must inform the court if, as a result of a noisy air conditioner, they could not hear the proceedings, and they never so alerted the court. It cannot be presumed that the jury would disregard those instructions (People v Davis, 58 NY2d 1102). Concur — Rosenberger, J. P., Ellerin, Nardelli and Williams, JJ.