People v. Otano

Appellate Division of the Supreme Court of New York

People v. Otano

1 A.D.3d 213, 767 N.Y.S.2d 224, 2003 N.Y. App. Div. LEXIS 11905

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

DecidedNovember 18, 2003

StatusPublished

This text of 1 A.D.3d 213 (People v. Otano) 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. Otano, 1 A.D.3d 213, 767 N.Y.S.2d 224, 2003 N.Y. App. Div. LEXIS 11905 (N.Y. Ct. App. 2003).

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Opinion

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered October 15, 2001, convicting defendant James Otano, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of six years, unanimously affirmed. Judgment, same court and Justice, rendered November 13, 2001, convicting defendant Frank Young, after a jury trial, of robbery in the first and second [214]*214degrees, and sentencing him to concurrent terms of five years, unanimously affirmed.

The court properly exercised its discretion in denying defendants’ mistrial motions made after the prosecutor’s summation. The challenged portions of the summation constituted fair comment on the evidence, made within the broad bounds of permissible advocacy (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). The prosecutor properly responded to defendants’ attacks on the victim’s credibility, and drew reasonable inferences from the evidence that were not unduly speculative. The prosecutor’s remarks with respect to the absence of a potential defense witness were responsive to defense arguments as well as being supported by a sufficient foundation (see People v Tankleff, 84 NY2d 992, 994-995 [1994]).

Defendant Otano’s claims with respect to the prosecutor’s cross-examination are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the cross-examination of Otano were permissible.

We perceive no basis for reducing the sentences. Concur— Nardelli, J.P., Tom, Mazzarelli and Marlow, JJ.

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Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered October 15, 2001, convicting defendant James Otano, after a jury trial, of robbery in the first and second degrees, and sentencing him to concurrent terms of six years, unanimously affirmed. Judgment, same court and Justice, rendered November 13, 2001, convicting defendant Frank Young, after a jury trial, of robbery in the first and second [214]*214degrees, and sentencing him to concurrent terms of five years, unanimously affirmed.

The court properly exercised its discretion in denying defendants’ mistrial motions made after the prosecutor’s summation. The challenged portions of the summation constituted fair comment on the evidence, made within the broad bounds of permissible advocacy (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). The prosecutor properly responded to defendants’ attacks on the victim’s credibility, and drew reasonable inferences from the evidence that were not unduly speculative. The prosecutor’s remarks with respect to the absence of a potential defense witness were responsive to defense arguments as well as being supported by a sufficient foundation (see People v Tankleff, 84 NY2d 992, 994-995 [1994]).

Defendant Otano’s claims with respect to the prosecutor’s cross-examination are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the cross-examination of Otano were permissible.

We perceive no basis for reducing the sentences. Concur— Nardelli, J.P., Tom, Mazzarelli and Marlow, JJ.

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Bluebook (online)

1 A.D.3d 213, 767 N.Y.S.2d 224, 2003 N.Y. App. Div. LEXIS 11905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-otano-nyappdiv-2003.

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