| People v Smith |
| 2011 NY Slip Op 07137 [88 AD3d 487] |
| October 11, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v HarrySmith, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered January 25,2010, convicting defendant, after a jury trial, of criminal possession of a weapon in the secondand third degrees, and sentencing him, as a second violent felony offender, to an aggregate termof nine years, unanimously affirmed.
The court properly exercised its discretion when it denied defendant's mistrial motion. In thatmotion, defendant asserted that portions of the prosecutor's summation shifted the burden ofproof. However, in each instance the court had sustained defendant's objection and struck theallegedly offending remark. The court's curative actions were sufficient to prevent any prejudice(see People v Santiago, 52 NY2d 865 [1981]). In any event, when viewed in context, thechallenged remarks were fair responses to defendant's summation, and they did not shift theburden of proof.
Defendant's remaining challenges to the summation are unpreserved, and we decline toreview them in the interest of justice. As an alternative holding, we find no basis for reversal(see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998];People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884[1993]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Friedman,Catterson, Moskowitz and Abdus-Salaam, JJ.