| People v Smalls |
| 2009 NY Slip Op 06351 [65 AD3d 708] |
| August 25, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jermaine Smalls, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Marilyn Filingeri of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered June 5, 2007, convicting him of burglary in the second degree and criminal mischief inthe fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that various remarks made by the prosecutor on summation wereimproper, and denied him his right to a fair trial. However, the defendant's arguments regardingthe prosecutor's summation, to the extent the prosecutor allegedly appealed to jurors' sympathiesand inserted certain facts not in evidence, are unpreserved for appellate review (see CPL470.05 [2]; People v Burke, 72 NY2d 833, 836 [1988]; People v Williams, 46NY2d 1070, 1071 [1979]; People vMoore, 50 AD3d 926, 927 [2008]). In any event, most of the challenged remarks werewithin the broad bounds of rhetorical comment permissible in closing arguments, fair commenton the evidence, or responsive to arguments and theories presented in the defense summation(see People v Halm, 81 NY2d 819, 821 [1993]; People v Galloway, 54 NY2d396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People vTurner, 214 AD2d 594 [1995]). Any error resulting from the remaining challenged remarkswas harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Ortiz, 46 AD3d 580, 581[2007]; People v Adamo, 309 AD2d 808, 809 [2003]). Spolzino, J.P., Skelos, Dillon andCovello, JJ., concur.