| People v Hickman |
| 2009 NY Slip Op 01995 [60 AD3d 865] |
| March 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TonyHickman, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum,and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg,J.), rendered June 2, 2004, convicting him of criminal possession of a controlled substance in thethird degree (two counts) and unlawful possession of marijuana, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was denied a fair trial by certain comments the prosecutormade on summation is unpreserved for appellate review, as the defendant failed to object to thechallenged comments or request any curative relief after the Supreme Court interjected andpermitted the comments to be made (see CPL 470.05 [2]; People v Boyce, 54 AD3d 1052,1053 [2008]; People v Aponte, 28AD3d 672 [2006]; People v Hernandez, 297 AD2d 389 [2002]). In any event, thechallenged comments were a fair response to the defense counsel's summation (see People v Lenoir, 57 AD3d 802[2008]; People v Crawford, 54AD3d 961, 962 [2008]). Furthermore, the Supreme Court providently exercised itsdiscretion in denying the defendant's motion for a mistrial, which was based on certain testimonyvolunteered by a prosecution witness (see People v Ortiz, 54 NY2d 288, 292 [1981]).
The defendant contends that he was denied his right of confrontation under the SixthAmendment of the United States Constitution because a prosecution witness invoked the FifthAmendment privilege [*2]against self-incrimination, and theSupreme Court failed to strike any portion of that witness's testimony. However, since thedefendant failed to object to or move to strike the witness's testimony, he failed to preserve thiscontention for appellate review (see CPL 470.05 [2]; People v Wright, 38 AD3d 1232, 1233 [2007]). In any event, theSupreme Court providently exercised its discretion in instructing the jury that it could considerthe witness's invocation of the privilege against self-incrimination in evaluating his credibility(see People v Siegel, 87 NY2d 536, 544-545 [1995]; People v Visich, 57 AD3d 804 [2008]).
Upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Prudenti, P.J., Ritter, Santucci andCovello, JJ., concur.