People v. Gunther

269 A.D.2d 466, 702 N.Y.S.2d 910, 2000 N.Y. App. Div. LEXIS 1340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2000
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered August 28, 1997, as amended April 28, 1998, convicting him of attempted robbery in the first degree, attempted robbery in the second degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment, as amended, is affirmed.

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contention that certain remarks made by the prosecutor during summation constitute reversible error is, for the most part, unpreserved for appellate review (see, CPL 470.05 [2]; People v Zephir, 226 AD2d 408). In any event, the comments made by the prosecutor during summation were either fair comment on the evidence, permissive rhetorical comment responsive to the defendant’s summation (see, People v Ashwal, 39 NY2d 105; People v Turner, 214 AD2d 594), or do not require reversal in light of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. O’Brien, J. P., Santucci, Florio and Smith, JJ., concur.