| People v Turgeon |
| 2004 NYSlipOp 05076 |
| June 14, 2004 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James S. Turgeon, Appellant. |
—[*1]Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered August 17, 2000. The judgment convicted defendant, after a jury verdict, of criminal trespass in the second degree, criminal mischief in the fourth degree, burglary in the second degree, and petit larceny.
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 after a jury trial of criminal trespass in the second degree (Penal Law § 140.15), criminal mischief in the fourth degree (§ 145.00), burglary in the second degree (§ 140.25 [2]), and petit larceny (§ 155.25). Contrary to the contention of defendant, County Court did not err in denying his request for a justification charge (§ 35.05 [2]). "The evidence at trial, viewed in the light most favorable to defendant, does not support his proffered defense of justification" (People v Brown, 152 AD2d 950, 950 [1989], lv denied 74 NY2d 894 [1989]; see People v Isaac, 224 AD2d 993, 994 [1996], lv denied 88 NY2d 937 [1996]). Contrary to the further contention of defendant, we conclude that, although the remarks of the prosecutor during her opening statement and summation were improper, they did not deprive defendant of a fair trial (see People v Bogue, 234 AD2d 946, 947 [1996], lv denied 92 NY2d 848 [1998]; see also People v Valdez, 262 AD2d 338, 339 [1999], lv denied 93 NY2d 1028 [1999]). Finally, the sentence is not unduly harsh or severe. Present—Pine, J.P., Hurlbutt, Gorski, Martoche and Lawton, JJ.