| People v Bravo |
| 2010 NY Slip Op 00530 [69 AD3d 870] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Bravo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Karen WigleWeiss, and Josette Simmons McGhee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered January 22, 2007, convicting him of assault in the second degree (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the jury instructions were erroneous is unpreserved forappellate review (see People vFloyd, 34 AD3d 494, 495 [2006]). In any event, this Court is persuaded that the jurywould have "gathered from [the] language [of the instructions] the correct standard to be applied[in reaching] its decision" (People v Lopez, 200 AD2d 767, 768 [1994]), and that thetrial court's error, if any, did not deny the defendant a fair trial (see People v Saunders,64 NY2d 665 [1984]).
The defendant also contends that the judgment of conviction should be reversed upon theground of prosecutorial misconduct. His contention regarding the prosecutor's allegedexaggeration or misstatement of the evidence is unpreserved for appellate review (see People v Williams, 8 NY3d854, 855 [2007]) and, in any event, without merit, as the prosecutor's statements consisted of"fair comment[ary] upon the evidence or a fair response to the defense summation" (People v White, 5 AD3d 511, 511[2004]).
Contrary to the defendant's contention that reversal is warranted since the prosecutorimproperly vouched for her witnesses, the trial court "dissipated the prejudice by promptly andclearly advising the jury that the comments were improper and must be completely disregarded"(People v Ashwal, 39 NY2d 105, 111 [1976]). Likewise, contrary to the defendant'scontention that reversal is warranted since the prosecutor improperly referred to redactedportions of certain documents otherwise admitted into evidence—which the Peoplecorrectly concede was improper—the references did not "violate[ ] the defendant'sfundamental right to a fair trial" (People v Adamo, 309 AD2d 808, 809 [2003] [internalquotation marks omitted]). In any event, any error in this regard was harmless, as the evidence ofthe defendant's guilt was overwhelming, and there was no "significant probability that thedefendant would have been acquitted if the [references] had not been made" (id.). To theextent that the prosecutor exceeded the bounds of permissible rhetorical comment or made otherimproper remarks during summation, any error [*2]was harmless(see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Adamo, 309AD2d at 809). Skelos, J.P., Dickerson, Lott and Roman, JJ., concur.