| People v Stevens |
| 2014 NY Slip Op 01346 [114 AD3d 969] |
| February 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jamel Stevens, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered January 10, 2012, convicting him of robbery in the first degree(two counts) and unlawful imprisonment, upon a jury verdict, and imposing sentenceupon his adjudication as a second violent felony offender.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the defendant's adjudication as a second violent felony offender andthe sentence imposed thereon; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
While we agree with the defendant that certain of the prosecutor's remarks duringsummation regarding nonexistent DNA evidence were improper, we find that anyprejudice that may have resulted from these remarks was alleviated when the trial courtsustained the defendant's objections and provided prompt curative instructions to thejury, directing that the jury disregard those remarks, and explaining why the remarkswere improper (see People vRogers, 106 AD3d 1029 [2013]; People v Sheehan, 105 AD3d 873, 875 [2013]; Peoplev Vasquez, 277 AD2d 333 [2000]).
The remaining challenges to the prosecutor's remarks during summation areunpreserved for appellate review since defense counsel failed to object to these remarksor made only general objections, and these remarks were not the basis of his motion for amistrial (see People v Sheehan, 105 AD3d at 875). In any event, these remarkswere within the broad bounds of rhetorical comment permissible in closing arguments,and constituted fair response to arguments made by defense counsel in summation, or faircomment on the evidence (see People v Halm, 81 NY2d 819, 821 [1993];People v Galloway, 54 NY2d 396, 401 [1981]; People v Sheehan, 105AD3d at 875; People vMaldonado, 55 AD3d 626, 628 [2008]; People v Shagi, 288 AD2d 495,496 [2001]; People v Torres, 121 AD2d 663, 664 [1986]), or were not soegregious as to have deprived the defendant of a fair trial (see People v Tiro, 100 AD3d663 [2012]).
As the People correctly concede, the defendant's prior conviction of armed robberyunder Maryland law does not constitute a predicate violent felony conviction (seePenal Law § [*2]70.04 [1] [b] [i];Somerville v Conway, 281 F Supp 2d 515, 520, 522 [2003]; People v Cochran, 10 AD3d563 [2004]). Although the defendant did not preserve for appellate review hiscontention that he was improperly adjudicated a second violent felony offender basedupon that conviction, we review his present claim as a matter of discretion in the interestof justice (see People vCosme, 99 AD3d 940 [2012]). In so doing, we vacate the defendant'sadjudication as a second violent felony offender and the sentence imposed thereon, andremit the matter for resentencing (see id.; Penal Law § 70.06 [1] [b] [i]).Dillon, J.P., Balkin, Chambers and Cohen, JJ., concur.