| People v Rogers |
| 2013 NY Slip Op 03694 [106 AD3d 1029] |
| May 22, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Frederick Rogers, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered December 8, 2010, convicting him of criminal possession of aweapon in the second degree (two counts) and a parking violation pursuant to 34 RCNY4-08 (f) (1), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcriminal possession of a weapon in the second degree under count two of the indictment,and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.
The People correctly concede that the defendant's conviction of criminal possessionof a weapon in the second degree, as charged under count two of the indictment, must bevacated, since that charge was dismissed by another judge before trial and later wasmistakenly submitted to the jury by the trial judge (see People v David, 95 AD3d 1031 [2012]; People v Occhione, 94 AD3d1021, 1023 [2012]; Peoplev McKay, 85 AD3d 821, 822 [2011]; People v Long, 56 AD3d 685 [2008]; People v Flores, 43 AD3d955 [2007]; People v Romero, 309 AD2d 953, 954 [2003]).
The defendant contends that he was deprived of a fair trial by certain remarks madeby the prosecutor in summation. The prosecutor's comments concerning the veracity ofthe police officer witnesses were fair response to the defense summation, in whichcounsel referred to "the lying police officers" and repeatedly characterized theirtestimony as untruthful and "lies." We agree with the defendant that certain of the otherremarks complained of were improper. However, reversal is not warranted because thetrial court's immediate admonitions and curative instructions, along with the trial court'sgeneral instructions at the beginning of the trial and at the conclusion of the trial, servedto eliminate any possibility of prejudice to the defendant (see People v Romero, 7 NY3d911, 913 [2006]; People v Galloway, 54 NY2d 396, 398 [1981]; People v Parham, 74 AD3d1237, 1238 [2010]; People v Bayer, 302 AD2d 602, 603 [2003]; Peoplev Rosario, 302 AD2d 266 [2003]; People v Straker, 301 AD2d 667 [2003];People v Haynes, 189 AD2d 894, 894-895 [1993]). Rivera, J.P., Balkin,Dickerson and Cohen, JJ., concur.