People v. Marmolejos

125 A.D.2d 335, 509 N.Y.S.2d 64, 1986 N.Y. App. Div. LEXIS 62607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1986
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered March 28, 1985, convicting him of attempted burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s guilt of the crime of attempted burglary in the second degree was overwhelmingly established by the eyewitness observations of the police officers (see, People v Contes, 60 NY2d 620). With respect to the prosecutrix’s summation, which the defendant claims was improper and prejudicial, no objection was made thereto by defense counsel, and consequently any error of law with respect thereto was not preserved for appellate review (CPL 470.05 [2]). In any event, an examination of the record indicates that in the main, the prosecutrix’s summation properly responded to defense counsel’s summation and, in addition, attempted, within proper bounds, to distinguish between reasonable doubt and unreasonable speculation. To the extent that any part of the prosecutrix’s summation can be considered improper, any error in that regard must be considered harmless in view of the overwhelming evidence of guilt.

We have reviewed the defendant’s remaining objection regarding the imposition of the mandatory surcharge and find it to be without merit (see, People v West, 124 Misc 2d 622, 624-625; People v Perrine, 111 AD2d 193). Mangano, J. P., Weinstein, Lawrence and Kooper, JJ., concur.