People v. McKissick

Appellate Division of the Supreme Court of New York

People v. McKissick

36 A.D.3d 941, 828 N.Y.S.2d 566

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

DecidedJanuary 30, 2007

StatusPublished

This text of 36 A.D.3d 941 (People v. McKissick) 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. McKissick, 36 A.D.3d 941, 828 N.Y.S.2d 566 (N.Y. Ct. App. 2007).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 9, 2004, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the prosecutor made improper comments during summation is without merit inasmuch as the challenged remarks were fair comment on the evidence, permissible rhetorical remarks, or appropriate responses to the defense counsel’s summation (see People v Simon, 34 AD3d 852 [2006]; People v Garner, 27 AD3d 764 [2006]; cf. People v Ashwal, 39 NY2d 105 [1976]).

Moreover, the defendant’s failure at sentencing to specify any particular allegation or allegations in the predicate felony statement he wished to controvert resulted in all allegations in the statement being deemed admitted (see CPL 400.15 [3]). Accordingly, the defendant was properly adjudicated a second violent felony offender, and his belated claim at sentencing that he had been afforded inaccurate advice by his counsel before pleading guilty to the prior felony was, under the circumstances of this case, insufficient to warrant a hearing (see People v Espinoza, 241 AD2d 554, 555 [1997]; see also People v Myron, 28 AD3d 681, 684 [2006]). Schmidt, J.P., Crane, Skelos and Fisher, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 9, 2004, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the prosecutor made improper comments during summation is without merit inasmuch as the challenged remarks were fair comment on the evidence, permissible rhetorical remarks, or appropriate responses to the defense counsel’s summation (see People v Simon, 34 AD3d 852 [2006]; People v Garner, 27 AD3d 764 [2006]; cf. People v Ashwal, 39 NY2d 105 [1976]).

Moreover, the defendant’s failure at sentencing to specify any particular allegation or allegations in the predicate felony statement he wished to controvert resulted in all allegations in the statement being deemed admitted (see CPL 400.15 [3]). Accordingly, the defendant was properly adjudicated a second violent felony offender, and his belated claim at sentencing that he had been afforded inaccurate advice by his counsel before pleading guilty to the prior felony was, under the circumstances of this case, insufficient to warrant a hearing (see People v Espinoza, 241 AD2d 554, 555 [1997]; see also People v Myron, 28 AD3d 681, 684 [2006]). Schmidt, J.P., Crane, Skelos and Fisher, JJ., concur.

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Bluebook (online)

36 A.D.3d 941, 828 N.Y.S.2d 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mckissick-nyappdiv-2007.

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