People v. Irby

Appellate Division of the Supreme Court of New York

People v. Irby

250 A.D.2d 778, 672 N.Y.S.2d 774, 1998 N.Y. App. Div. LEXIS 5756

Appellate Division of the Supreme Court of the State of New York·Decided May 18, 1998·Published·Cited by 1 cases

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered January 9, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon á jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

[779] The defendant contends, inter alia, that certain remarks made by the prosecutor during summation constituted reversible error. He claims that the prosecutor’s references to the defendant’s failure to call a certain undercover police officer as a witness shifted the burden of proof from the prosecution to the defense. While the prosecutor’s comments were improper (see, People v DeJesus, 137 AD2d 761), the court sustained the defense objections, provided a prompt curative instruction to the jury, and granted the defense application for a missing-witness charge. Under the circumstances, there was no reasonable possibility that the prosecutor’s comments affected the verdict (see, People v Brown, 208 AD2d 414; People v Davis, 128 AD2d 800; see also, People v Crimmins, 36 NY2d 230).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Miller, Thompson and Santucci, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered January 9, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon á jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

[779] The defendant contends, inter alia, that certain remarks made by the prosecutor during summation constituted reversible error. He claims that the prosecutor’s references to the defendant’s failure to call a certain undercover police officer as a witness shifted the burden of proof from the prosecution to the defense. While the prosecutor’s comments were improper (see, People v DeJesus, 137 AD2d 761), the court sustained the defense objections, provided a prompt curative instruction to the jury, and granted the defense application for a missing-witness charge. Under the circumstances, there was no reasonable possibility that the prosecutor’s comments affected the verdict (see, People v Brown, 208 AD2d 414; People v Davis, 128 AD2d 800; see also, People v Crimmins, 36 NY2d 230).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Miller, Thompson and Santucci, JJ., concur.

People v. Irby, 250 A.D.2d 778, 672 N.Y.S.2d 774, 1998 N.Y. App. Div. LEXIS 5756 (N.Y. Ct. App. 1998).

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