People v. Evans

303 A.D.2d 1039, 759 N.Y.S.2d 823, 2003 N.Y. App. Div. LEXIS 2966

Opinion

—Appeal from a judgment of Chautauqua County Court (Ward, J.), entered February 7, 2000, convicting defendant after a jury trial of, inter alia, assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him of, inter alia, assault in the second degree (Penal Law § 120.05 [2]). We reject the contention of defendant that the prosecutor’s remarks during summation denied him a fair trial. The remarks with respect to the electrical cord that defendant used to strike the victim were fair comment on defense counsel’s summation (see People v O'Donnell, 295 AD2d 936, 937 [2002], lv denied 98 NY2d 770 [2002]) and the fact that the prosecutor struck the table with the electrical cord did not have “ ‘a decided tendency to prejudice the jury’ ” (People v Halm, 81 NY2d 819, 821 [1993]). Any prejudice with respect to the prosecutor’s remark that defendant had a firearm in his pickup truck was alleviated by County Court’s curative instruction (cf. People v Calabria, 94 NY2d 519, 523 [2000]). The sentence is neither unduly harsh nor severe. Present — Pine, J.P., Scudder, Kehoe, Lawton and Hayes, JJ.