People v. Harris

61 A.D.3d 441, 877 N.Y.S.2d 258

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 2009
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered June 13, 2007, convicting defendant, after a jury trial, of robbery in the second degree, grand larceny in the second degree, and four counts of larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 12 years, 7 to 14 years and 2 to 4 years (four terms), unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion made after the prosecutor’s summation. To the extent that the prosecutor’s comments may be viewed as commenting on defendant’s exercise of his right to a trial, the court’s prompt curative actions were sufficient to prevent any prejudice (see People v Santiago, 52 NY2d 865 [1981]). Defendant’s remaining challenges to the summation do not warrant reversal (see People v Overlee, 236 AD2d 133 [1997], Iv denied 91 NY2d 976 [1998]; People v D’Alessandro, 184 AD2d 114, 118-119 [1992], Iv denied 81 NY2d 884 [1993]).

Defendant’s Confrontation Clause claim is unpreserved (see e.g. People v Lopez, 25 AD3d 385 [2006], lv denied 7 NY3d 758 [2006]), and we decline to review it in the interest of justice. As an alternative holding, we find that the document at issue was not testimonial (see People v Freycinet, 11 NY3d 38 [2008]; People v Rawlins, 10 NY3d 136 [2008]).

We perceive no basis for reducing the sentence. Defendant’s argument concerning the mandatory surcharge and fees is unavailing (see People v Guerrero, 12 NY3d 45 [2009]). Concur— Mazzarelli, J.E, Nardelli, Buckley, Acosta and DeGrasse, JJ.