People v. Simpson

50 A.D.3d 452, 855 N.Y.S.2d 500

Opinion

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered September 13, 2005, convicting defendant, after a jury trial, of four counts each of robbery in the first and second degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 35 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion, made after the court had completed its charge to the jury, that was based on the prosecutor’s attempt in summation to explain the absence of fingerprint evidence. The comment constituted a fair response to the defense summation (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]). Defendant’s other challenge to the prosecutor’s summation is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Concur—Mazzarelli, J.E, Andrias, Friedman and Sweeny, JJ.