People v. Rivera

51 A.D.3d 447, 855 N.Y.S.2d 897

Opinion

Judgment, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), rendered March 21, 2006, convicting defendant, after a jury trial, of two counts of operating a motor vehicle while under the influence of alcohol, and sentencing him to concurrent terms of 1⅓ to 4 years and a fine of $2,500, unanimously affirmed.

Defendant’s claims regarding the prosecutor’s summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits (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]).

Contrary to defendant’s contention, the record establishes that the sentencing court did not consider the crime of which defendant was acquitted. Concur—Lippman, P.J., Saxe, Buckley and Acosta, JJ.