| People v Bragg |
| 2018 NY Slip Op 03535 [161 AD3d 998] |
| May 16, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Bragg, Appellant. |
Paul Skip Laisure, New York, NY (Lynn W. L. Fahey and Patterson Belknap Webb &Tyler LLP [Joshua A. Goldberg and Daniel A. Friedman], of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, andJames H. Shih of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy J.Mangano, Jr., J.), rendered June 26, 2015, as amended July 7, 2015, convicting him of burglaryin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
The defendant's contention that the Supreme Court's Sandoval ruling (see Peoplev Sandoval, 34 NY2d 371 [1974]) deprived him of his constitutional right to a fair trial isunpreserved for appellate review, as he did not raise any constitutional challenge to theSandoval ruling before the trial court (see CPL 470.05 [2]; People v Wheelings, 137 AD3d1310, 1311 [2016]). In any event, the court's Sandoval ruling was not an improvidentexercise of discretion. The court properly balanced the probative value of the defendant's priorconvictions with respect to the issue of the defendant's credibility against the risk of unfairprejudice to the defendant (see People vPaige, 88 AD3d 912, 912 [2011]; People v Celleri, 29 AD3d 707, 709 [2006]).
The defendant's contention that certain comments made by the prosecutor during her openingstatement and summation were improper and deprived him of a fair trial is unpreserved forappellate review, since the defendant either failed to object to the remarks he now challenges, ormade only a general one-word objection and failed to either request additional instructions whenthe trial court gave curative instructions or move for a mistrial based on the sustained objection(see CPL 470.05 [2]; People vMartin, 116 AD3d 981 [2014]; People v Allen, 114 AD3d 958 [2014]; People v Morel, 297AD2d 757 [2002]). In any event, the defendant's contention is without merit, as most of theremarks were either fair comment on the evidence and the reasonable inferences to be drawntherefrom, fair response to the defendant's summation, or permissible rhetorical comment (see People v Young, 141 AD3d551, 552 [2016]; People v Martin, 116 AD3d at 982-983; People v Allen,114 AD3d at 959). To the extent that some of the prosecutor's remarks made during her openingstatement and summation were improper, those remarks did not deprive the defendant of a fairtrial, and any other error in this regard was harmless (see People v Crimmins, 36 NY2d230, 241-242 [1975]; People vRoscher, 114 AD3d 812, 813 [2014]; People v Walston, 196 AD2d 903, 904[1993]).
[*2] At the request of the prosecutor, theSupreme Court precluded the defense counsel from arguing in her summation that the testimonyof a detective that the defendant consented to provide a buccal swab of his DNA for testingdemonstrated the defendant's consciousness of innocence. The defendant's contention on appealthat the preclusion of this summation argument deprived him of his constitutional right to presenta defense is unpreserved for appellate review (see CPL 470.05 [2]; People v Taylor, 40 AD3d 782,783 [2007]), and, in any event, without merit (see People v Ross, 56 AD3d 380, 380-381 [2008]). Rivera, J.P.,Duffy, Barros and Iannacci, JJ., concur.