People v. Malave

Appellate Division of the Supreme Court of New York

People v. Malave

7 A.D.3d 542, 775 N.Y.S.2d 588

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 3, 2004

StatusPublished

Cited by42 cases

This text of 7 A.D.3d 542 (People v. Malave) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588 (N.Y. Ct. App. 2004).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered March 22, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of a fair trial as a result of the prosecutor’s summation is unpreserved for appellate review. He either did not object to the remarks at issue, made only general one-word objections, or his objections were sustained without any further request for curative instructions (see CPL 470.05 [2]; People v Heide, 84 NY2d 943, 944 [1994]; People v Tevaha, 84 NY2d 879, 881 [1994]; People v Medina, 53 NY2d 951, 953 [1981]). Moreover, the defendant’s motion for a mistrial, made after the completion of summations, was untimely and failed to preserve his contentions (see People v Morris, 148 AD2d 552 [1989]; People v Bruen, 136 AD2d 648, 649 [1988]).

In any event, the defendant’s contentions are without merit. The prosecutor’s summation can be evaluated fairly only in comparison to that of the defense (see People v Halm, 81 NY2d 819, 821 [1993]; People v McHarris, 297 AD2d 824, 825 [2002]). Analyzed in this context, the prosecutor’s summation constituted a fair response to the defendant’s closing argument which explicitly put his credibility at issue (see People v Allien, 302 [543]*543AD2d 468, 469 [2003]; People v Lowery, 281 AD2d 491, 492 [2001]; People v Sinclair, 231 AD2d 926 [1996]; People v Russo, 201 AD2d 512, 513 [1994], affd 85 NY2d 872 [1995]). In addition, the prosecutor did not assert an unduly prejudicial “safe streets” argument (People v Tolliver, 267 AD2d 1007, 1008 [1999]; see People v Durecot, 224 AD2d 264, 265 [1996]).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Prudenti, P.J., Ritter, Luciano and Crane, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered March 22, 2002, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of a fair trial as a result of the prosecutor’s summation is unpreserved for appellate review. He either did not object to the remarks at issue, made only general one-word objections, or his objections were sustained without any further request for curative instructions (see CPL 470.05 [2]; People v Heide, 84 NY2d 943, 944 [1994]; People v Tevaha, 84 NY2d 879, 881 [1994]; People v Medina, 53 NY2d 951, 953 [1981]). Moreover, the defendant’s motion for a mistrial, made after the completion of summations, was untimely and failed to preserve his contentions (see People v Morris, 148 AD2d 552 [1989]; People v Bruen, 136 AD2d 648, 649 [1988]).

In any event, the defendant’s contentions are without merit. The prosecutor’s summation can be evaluated fairly only in comparison to that of the defense (see People v Halm, 81 NY2d 819, 821 [1993]; People v McHarris, 297 AD2d 824, 825 [2002]). Analyzed in this context, the prosecutor’s summation constituted a fair response to the defendant’s closing argument which explicitly put his credibility at issue (see People v Allien, 302 [543]*543AD2d 468, 469 [2003]; People v Lowery, 281 AD2d 491, 492 [2001]; People v Sinclair, 231 AD2d 926 [1996]; People v Russo, 201 AD2d 512, 513 [1994], affd 85 NY2d 872 [1995]). In addition, the prosecutor did not assert an unduly prejudicial “safe streets” argument (People v Tolliver, 267 AD2d 1007, 1008 [1999]; see People v Durecot, 224 AD2d 264, 265 [1996]).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Prudenti, P.J., Ritter, Luciano and Crane, JJ., concur.

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7 A.D.3d 542, 775 N.Y.S.2d 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-malave-nyappdiv-2004.

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