People v. Eldridge

288 A.D.2d 845, 732 N.Y.S.2d 607, 2001 N.Y. App. Div. LEXIS 10636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2001
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10 [2] [a]). Contrary to defendant’s contention, the evidence of physical injury is legally sufficient to support the conviction (see, People v Bleakley, 69 NY2d 490, 495; People v Wiggins, 265 AD2d 905, 905-906, Iv denied 94 NY2d 908). The verdict is not against the weight of the evidence (see, People v Bleakley, supra, at 495).

Contrary to the further contention of defendant, he was not denied a fair trial by prosecutorial misconduct during summation. With respect to the single instance of alleged misconduct that is preserved for our review, the curative instruction given by County Court alleviated any possible prejudice to defendant (see, People v Spina, 275 AD2d 902, 903, lv denied 95 NY2d 969). With respect to the unpreserved incidents of misconduct, we agree with defendant that the prosecutor made an inappropriate “safe streets” comment (see, People v Tolliver, 267 AD2d 1007, 1008, lv denied 94 NY2d 908) and improperly vouched for the credibility of the victim. We conclude, however, that the prosecutor’s misconduct was not so egregious as to deprive defendant of a fair trial (see, People v Plant, 138 AD2d 968, lv denied 71 NY2d 1031). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Erie County Court, Drury, J. — Robbery, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Burns and Gorski, JJ.