| People v Tavarez |
| 2016 NY Slip Op 00530 [135 AD3d 973] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward Tavarez, Appellant. |
Lynn W. L. Fahey, New York, NY (Elizabeth Budnitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Antara D. Kanth of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Zayas, J.), rendered December 18, 2013, convicting him of burglary in the seconddegree, criminal mischief in the fourth degree, and possession of burglar's tools, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial due to improperremarks made by the prosecutor during summation is unpreserved for appellate review(see CPL 470.05 [2]; People v Scotti, 220 AD2d 543 [1995]). In anyevent, most of the prosecutor's remarks, viewed in context, constituted fair comment onthe evidence and the inferences to be drawn therefrom (see People v Valdes, 291AD2d 513, 514 [2002]; People v Holguin, 284 AD2d 343 [2001]). Contrary tothe defendant's contention, the challenged remarks did not improperly vouch for thestrength of the People's case, or denigrate the defense or the defendant's exercise of hisright to a jury trial. To the extent that any of the prosecutor's remarks were improper, theywere not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v Thompson, 125AD3d 899, 900 [2015]; People v Ward, 106 AD3d 842, 843 [2013]; People v Philbert, 60 AD3d698, 699 [2009]; People vAlmonte, 23 AD3d 392, 394 [2005]).
The defendant's contention that the evidence was legally insufficient to support hisconviction of possession of burglar's tools is unpreserved for appellate review (see People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of that offense (seePeople v Borrero, 26 NY2d 430 [1970]). Mastro, J.P., Leventhal, Cohen andLaSalle, JJ., concur.