People v. Tucker

27 A.D.3d 592, 811 N.Y.S.2d 432

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered February 26, 2004, convicting him of attempted burglary in the third degree and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The summation of a prosecutor is evaluated in comparison to that of the defense counsel and is proper if it is responsive to arguments and issues raised by the defense (see People v McHarris, 297 AD2d 824 [2002]; People v Miller, 143 AD2d 1055 [1988]). Curative’ instructions can dissipate the prejudicial nature of a prosecutor’s comments during summation (see People v Stith, 215 AD2d 789 [1995]; People v Miller, supra). Some of the prosecutor’s comments during summation were responsive to arguments raised by the defendant’s counsel and the trial court on three occasions instructed the jury that nothing stated during summations is evidence in the case. Moreover, any improper remarks made by the prosecutor were harmless in light of the overwhelming evidence of the defendant’s guilt (see People v Brosnan, 32 NY2d 254 [1973]; People v Harrell, 270 AD2d 358 [2000]).

Based on the record before this Court, the defendant’s remaining contention does not require reversal. Schmidt, J.P., Santucci, Mastro and Lifson, JJ., concur.