People v. Tucker

204 A.D.3d 1479, 165 N.Y.S.3d 761, 2022 NY Slip Op 02740

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 2022
• Docket: MOTION NO. (387/21) KA 19-00346.
• Status: Published

Opinion

People v Tucker (2022 NY Slip Op 02740)

People v Tucker

2022 NY Slip Op 02740

Decided on April 22, 2022

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 22, 2022
PRESENT: SMITH, J.P., LINDLEY, CURRAN, AND BANNISTER, JJ. (Filed Apr. 22, 2022.)
MOTION NO. (387/21) KA 19-00346.

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

CHRISTOPHER TUCKER, DEFENDANT-APPELLANT.

MEMORANDUM AND ORDER

Motion for reargument be and the same hereby is granted to the extent that, upon reargument, the memorandum and order entered June 17, 2021 (195 AD3d 1547 [4th Dept 2021]) is amended by deleting the seventh sentence of the fourth paragraph of the memorandum, and by deleting the fifth sentence of the fourth paragraph of the memorandum and substituting the following sentence in place of the fifth sentence of that paragraph:

Similarly, even assuming, arguendo, that the prosecutor made any arguments during summation that constituted a comment on defendant's prearrest silence (cf. People v Clark, 37 AD3d 487, 489 [2d Dept 2007], lv denied 9 NY3d 841 [2007]), we conclude that, viewing the prosecutor's "summation as a whole, those comments 'were not so pervasive or egregious as to deprive defendant of a fair trial' " (People v Elmore, 175 AD3d 1003, 1005 [4th Dept 2019], lv denied 34 NY3d 1158 [2020]; see People v Babb, 186 AD3d 1058, 1059 [4th Dept 2020], lv denied 36 NY3d 1049 [2021]; People v Forde, 140 AD3d 1085, 1086 [2d Dept 2016], lv denied 28 NY3d 929 [2016]).