| People v Callender |
| 2014 NY Slip Op 08657 [123 AD3d 840] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ashante Callender, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jennifer Hagan, and Christine DiSalvo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered April 4, 2012, convicting him of criminal sale of a controlledsubstance in the second degree and criminal sale of a controlled substance in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
As the defendant correctly contends, the prosecutor improperly cross-examined adefense witness as to the content of prior conversations between himself and that witness(see People v Paperno, 54 NY2d 294, 300-301 [1981]; People v Rivera, 27 AD3d491 [2006]; People vWatts, 3 AD3d 425 [2004]; People v Mangine, 73 AD2d 816 [1979]).Nevertheless, reversal on this basis is not warranted. In reviewing claims of prosecutorialmisconduct, the court will consider the severity and frequency of the conduct, whetherthe court took appropriate action, and whether the result would have been the sameabsent the conduct (see People vWright, 88 AD3d 1154, 1158 [2011]).
Here, the court struck the questions and answers regarding the content of theconversations between the prosecutor and the witness, and instructed the jurors beforedeliberations that they were to dismiss from their minds any testimony that had beenstricken and any unanswered questions. The court also instructed the jury that questionsin and of themselves are not evidence. The jury is presumed to have followed theseinstructions (see People vMiller, 107 AD3d 406 [2013]; People v Simmons, 39 AD3d 235 [2007]). Furthermore, theprosecutor's misconduct constituted harmless error, as there was overwhelming evidenceof the defendant's guilt and no reasonable possibility that the jury would have acquittedthe defendant had the prosecutor not asked the witness about his prior conversations withthe witness (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Jacob, 117 AD3d1079, 1080 [2014]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation is unpreserved for appellate review, as thedefendant failed to object to any of the challenged remarks (see People v Yusuf, 119 AD3d619 [2014]; People vOrmejuste, 117 AD3d 756 [2014]). In any event, this contention is withoutmerit. The challenged remarks [*2]were fair comment onthe evidence, responsive to the defense summation, and remained within the broadbounds of rhetorical comment permissible in closing arguments (see People v Thompson, 118AD3d 822 [2014]; People vMobley, 116 AD3d 1067 [2014]; People v McGowan, 111 AD3d 850 [2013]). Finally, sincethe challenged remarks were not improper, defense counsel's failure to object to them didnot constitute ineffective assistance of counsel (see People v Mobley, 116 AD3dat 1068; People v McGowan, 111 AD3d at 851). Mastro, J.P., Roman, Sgroi andMaltese, JJ., concur.