People v Dinh

2010 NY Slip Op 00977 [70 AD3d 848]

February 9, 2010

Appellate Division, Second Department

As corrected through Wednesday, March 31, 2010

The People of the State of New York, Respondent, v VinhDinh, Appellant.

—[*1]Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill,and Josette Simmons-McGhee of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered February 13, 2008, convicting him of gang assault in the first degree,assault in the second degree (two counts), and criminal possession of a weapon in the fourthdegree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's contentions that the prosecutor engaged in misconduct both whilecross-examining him and during his summation are unpreserved for appellate review (see People v Williams, 8 NY3d854, 855 [2007]; People v Booth, 265 AD2d 485, 486 [1999]). In any event, thecomplained-of questioning fell within the bounds of proper cross-examination (see People vOverlee, 236 AD2d 133, 138, 139 [1997]; People v Caicedo, 173 AD2d 630, 631[1991]). Likewise, most of the prosecutor's summation constituted "fair comment upon theevidence or a fair response to the defense summation" (People v White, 5 AD3d 511, 511 [2004]), and any impropercomments constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242[1975]). Dillon, J.P., Florio, Leventhal and Roman, JJ., concur.