People v. Dominguez

275 A.D.2d 468, 713 N.Y.S.2d 129, 2000 N.Y. App. Div. LEXIS 8922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 28, 2000
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 29, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that reversible error occurred because of prosecutorial misconduct is not preserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245, 248-252). In any event, it is without merit. The references to the ethnic origin of the defendant during the opening statement and upon the direct testimony of the prosecution witnesses did not constitute a “ ‘thematic reference to * * * race’ ” as to warrant reversal (People v Ali, 158 AD2d 460; People v Rivera, 136 AD2d 520, affd 73 NY2d 941; cf., People v Thomas, 129 AD2d 596). Additionally, the prosecutor’s statements during summation were a fair comment on the evidence (see, People v Ashwal, 39 NY2d 105; People v Plowden, 236 AD2d 489) or responsive to arguments presented in the defense counsel’s summation (see, People v Galloway, 54 NY2d 396).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.