People v. Stallworth

21 A.D.3d 1412, 802 N.Y.S.2d 817

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), entered December 20, 2002. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [2]). Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary to the contention of defendant, he was not denied a fair trial based upon comments made by the prosecutor during summation. Supreme Court instructed the jury to disregard the prosecutor’s statement that a prosecution witness “will not get any deal” on a pending charge, thereby alleviating any prejudice arising from the prosecutor’s improper reference to a matter not in evidence (see generally People v Ashwal, 39 NY2d 105, 111 [1976]; People v Clark, 195 AD2d 988, 991 [1993]). The remainder of the prosecutor’s summation was a fair response to defense counsel’s summation and “did not exceed the bounds of legitimate advocacy” (People v Melendez, 11 AD3d 983, 984 [2004] , lv denied 4 NY3d 888 [2005]). Present—Green, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.