| People v Fields |
| 2009 NY Slip Op 09995 [68 AD3d 1537] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NahkiemFields, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered January 30, 2008, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the third degree.
Defendant was charged by indictment with two counts of assault in the second degree andone count of criminal possession of a weapon in the third degree based upon allegations that hehad used a knife to inflict wounds on two victims. At trial, defendant asserted that he had actedin self-defense. Apparently crediting that defense, the jury acquitted him of the assault charges,but found him guilty on the weapon charge. County Court sentenced him to a term of2
On appeal, defendant contends that he was deprived of a fair trial by the prosecution'sattempts during jury selection to shift the burden of proof to him. In assessing that claim, weconsider " 'the severity and frequency of the conduct, whether the trial court took appropriateaction to dilute the effect of the conduct and whether, from a review of the evidence, it can besaid that the result would have been the same absent such conduct' " (People v Layton,16 AD3d 978, 979 [2005], lv denied 5 NY3d 765 [2005], quoting People vTarantola, 178 AD2d 768, 770 [1991], lv denied 79 NY2d 954 [1992]).[*2]
The prosecutor's remarks here should not have beenmade and properly drew warnings from County Court because they suggested that defendant hadacted unreasonably and not been an innocent victim. The comments, however, were brief, madeduring jury selection when the prospective jurors had been told little more than that defendanthad struck the victims and, in view of County Court's prompt intervention and curativeinstructions concerning the burden of proof, they cannot be said to be flagrant and pervasive orseen as having shifted the burden of proof (see People v Edwards, 38 AD3d 1133, 1134[2007], lv denied 9 NY3d 864 [2007]; People v Kirker, 21 AD3d 588, 589-590[2005], lv denied 5 NY3d 853 [2005]; People v Roberts, 12 AD3d 835, 837-838[2004], lv denied 4 NY3d 802 [2005]). In any event, the error was harmless because thecomments related only to the assault charges and the jury acquitted defendant of those charges(see People v Perser, 67 AD3d 1048, 1050 [2009]).
We also are unpersuaded that the sentence was an abuse of discretion or that extraordinarycircumstances exist that would merit reducing the sentence, despite defendant's lack of asignificant criminal history (see People v Perkins, 62 AD3d 1160, 1162 [2009], lvdenied 13 NY3d 748 [2009]; People v Ashley, 45 AD3d 987, 989 [2007], lvdenied 10 NY3d 761 [2008]).
Mercure, J.P., Spain, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.