People v. Fernandez

286 A.D.2d 444, 730 N.Y.S.2d 234, 2001 N.Y. App. Div. LEXIS 8071

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrero, J.), rendered August 31, 1998, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, with costs.

The defendant’s claim that the prosecutor’s allegedly improper comments during summation constituted reversible error is, for the most part, not preserved for appellate review (see, CPL 470.05 [2]; People v Tonge, 93 NY2d 838; People v Scotti, 220 AD2d 543). In any event, the comments and conduct did not exceed permissible rhetoric, were properly responsive to the defendant’s summation, and were a fair comment on the evidence (see, People v Galloway, 54 NY2d 396, 399; People v Guerrero, 250 AD2d 703; People v Gamble, 215 AD2d 584). The defendant’s claim of error concerning the jury charge on recent and exclusive possession is not preserved for appellate review. In any event, the charge was properly balanced and did not convey an opinion as to the defendant’s guilt or innocence (see, People v Ladd, 89 NY2d 893, 895-896). Santucci, J. P., S. Miller, Smith and Crane, JJ., concur.