People v. Dunbar

213 A.D.2d 1000, 625 N.Y.S.2d 772, 1995 N.Y. App. Div. LEXIS 3789

Opinion

—Judgment unanimously affirmed. Memorandum: Because defendants did not object to the prosecutor’s summation, their argument that several of the prosecutor’s comments were improper is not preserved for review (see, CPL 470.05 [2]). In any event, defendants were not deprived of a fair trial. On summation, the prosecutor is free to concentrate on the proven facts and circumstances and the inferences to be drawn therefrom to support the credibility of a witness (see, People v Bailey, 58 NY2d 272, 277). Moreover, the prosecutor is afforded latitude to advocate his cause, and the prosecutor’s closing statement must be evaluated in light of the defense summation (see, People v Halm, 81 NY2d 819, 821; People v Morgan, 66 NY2d 255, 259). Defense counsel repeatedly attacked the credibility of an eyewitness who testified for the People, based upon her admitted drug use, prostitution and criminal record. In response, the prosecutor reviewed the testimony of the eyewitness concerning her observations at the scene and stressed its consistency with the facts and circumstances as described by the police witnesses. Although the prosecutor should not have argued that the witness was "telling the truth”, that isolated comment did not deprive defendants of a fair trial (cf., People v Bailey, supra).

Upon our review of the record, we conclude that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Finally, we conclude that the sentences are not harsh or excessive. (Appeal from Judgment of Erie County Court, D’Amico, J.—Burglary, 3rd Degree.) Present—Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ.