| People v Gary |
| 2007 NY Slip Op 07521 [44 AD3d 416] |
| October 11, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v William D. Gary, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered July 8, 2005,convicting defendant, after a jury trial, of two counts of criminal possession of a controlledsubstance in the third degree, and sentencing him, as a second felony offender, to concurrentterms of six years, unanimously affirmed.
The court properly permitted the prosecutor to impeach defendant by way of statements hisattorney made at arraignment (see People v Brown, 98 NY2d 226, 232-233 [2002]; People v Kallamni, 14 AD3d 316[2005], lv denied 4 NY3d 854 [2005]; People v Moye, 11 AD3d 212 [2004], lv denied 4 NY3d766 [2005]). It was a reasonable inference that these statements were attributable to defendant,and they significantly contradicted his trial testimony. Defendant's other argument concerning thePeople's cross-examination is unpreserved and we decline to review it in the interest of justice.Were we to review this claim, we would reject it.
The prosecutor had a sufficient basis upon which to comment in summation on defendant'sfailure to call certain witnesses, and these remarks did not shift the burden of proof (seePeople v Tankleff, 84 NY2d 992, 994-995 [1994]; see also People v Overlee, 236AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). Furthermore, the court's prompt andthorough instructions regarding the applicable burden of proof prevented any possible prejudice.
The court properly denied defendant's suppression motion. There is no basis for [*2]disturbing the court's credibility determinations, which aresupported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]).Concur—Tom, J.P., Mazzarelli, Friedman, Sullivan and Nardelli, JJ.