People v. Ferrer

245 A.D.2d 569, 666 N.Y.S.2d 508, 1997 N.Y. App. Div. LEXIS 13343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1997
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jones, J.), rendered November 16, 1995, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that prosecutorial misconduct denied him his right to a fair trial is without merit. Contrary to the defendant’s contentions, the comments made by the prosecutor during summation were appropriate. It is the right of counsel during summation to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide (see, People v Ashwal, 39 NY2d 105, 109). The prosecutor’s comments referred to matters in evidence, or which were fairly inferable from the evidence (see, People v Ashwal, supra, at 109-110). The prosecutor’s remarks constituted a permissible response to the defendant’s characterization of a buy and bust operation and the performance of the police officers involved, and did not constitute improper bolstering.

The prosecutor did not attempt to shift or limit the People’s burden of proof. In any event, as the court correctly conveyed the burden of proof requirements to the jury, the jury is presumed to have followed the instructions as given (see, People v McCray, 167 AD2d 304, 305). Rosenblatt, J. P., Ritter, Altman and Florio, JJ., concur.