People v. Guerrero

217 A.D.2d 411, 629 N.Y.S.2d 234, 1995 N.Y. App. Div. LEXIS 7647

Opinion

Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered July 23, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of lxh to 221h years and 41/2 to 131/2 years, respectively, unanimously affirmed.

Defendant’s claim of prosecutorial misconduct in summation is largely unpreserved. Were we to review the comments in question, including the characterization of defendant’s testimony as a "fairytale”, we would find that they were properly responsive to defense arguments and constituted fair comment on the evidence presented within the broad bounds of rhetorical comment permissible in closing argument (see, People v Wright, 212 AD2d 413). The prosecutor’s statement in respect to defendant’s videotape admission that he had previously seen the gun in question was the subject of a prompt curative instruction by the court. We perceive no abuse of discretion in sentencing. The application for a waiver of the mandatory surcharge is premature (People v Ramirez, 208 AD2d 381, lv denied 84 NY2d 1037). Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Tom, JJ.