| People v Burton |
| 2019 NY Slip Op 06957 [175 AD3d 1847] |
| September 27, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Devonte E. Burton, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (A. Vincent Buzard of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedSeptember 9, 2015. The judgment convicted defendant, upon a jury verdict, of sexual abuse inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of sexualabuse in the first degree (Penal Law § 130.65 [1]), defendant contends that he wasdenied a fair trial by prosecutorial misconduct during jury selection and summation. Assuming,arguendo, that defendant's contention is preserved for our review (see CPL 470.05 [2]),we reject it. The prosecutor's questions during jury selection concerning the likelihood that avictim of child sexual abuse knows the offender were "relevant and material to the inquiry athand" (People v Sweney, 55 AD3d 1350, 1351 [4th Dept 2008], lv denied 11NY3d 901 [2008] [internal quotation marks omitted]; see generally CPL 270.15 [1] [c]).To the extent that the prosecutor mischaracterized the testimony of a witness during summation,we conclude that the prosecutor's comments were not so egregious as to deprive defendant of afair trial (see People v Fick, 167AD3d 1484, 1485-1486 [4th Dept 2018], lv denied 33 NY3d 948 [2019]; People v Flowers, 166 AD3d1492, 1495 [4th Dept 2018], lv denied 32 NY3d 1125 [2018]).Present—Centra, J.P., Carni, NeMoyer, Troutman and Winslow, JJ.