| People v Hamilton |
| 2016 NY Slip Op 00514 [135 AD3d 958] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Barry Hamilton, Appellant. |
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andSholom J. Twersky, and Anthony W. Mariano [Davis Polk & Wardwell LLP] ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Riviezzo, J.), rendered August 26, 2013, convicting him of assault in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the prosecutor's comments during summationdeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]). In any event, most of the prosecutor's comments were not improper, since theyconstituted fair response to the defendant's attack on the credibility of the People'switnesses, or were within the bounds of appropriate argument based on the evidence(see People v Galloway, 54 NY2d 396, 399 [1981]; People v Arroyo, 125 AD3d987, 988 [2015]; People vTorres, 71 AD3d 1063, 1063 [2010]).
While it may have been improper for the prosecutor to comment during thesummation that "there is no dispute that the defendant is the person who perpetrated thiscrime" (see People v Adamo, 309 AD2d 808, 809 [2003]), any taint or prejudicewould have been ameliorated by the trial court's instructions as to the proper burden ofproof, which the jury is presumed to have followed (see e.g. People v Davis, 58NY2d 1102, 1104 [1983]; People v Overlee, 236 AD2d 133, 142 [1997]).
The defendant's remaining contentions are without merit. Rivera, J.P., Dillon, Romanand Duffy, JJ., concur.