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People v. Thomas

186 A.D.2d 602 Court N.Y. App. Div. Decision date 1992-10-05 English

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p. 602
The People of the State of New York, Respondent, v Oliver Thomas, Appellant.

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barasch, J.), rendered March 13, 1991, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We find unpersuasive the defendant’s contention that he was denied a fair trial by the prosecutor’s summation comments regarding the issue of credibility. While the prosecutor advised the jurors that they would have "to decide who you are going to believe”, this remark did not improperly shift the

p. 603
burden of proof to the defense. Rather, the comment was appropriate, given the numerous fundamental conflicts between the testimony of the police officers and the defendant, and it was entirely consistent with the defense counsel’s focus on the issue of credibility during her summation (see generally, People v Taylor, 167 AD2d 363 ). Likewise, the prosecutor’s reference to the issue of whether one of the police officers testified truthfully did not constitute vouching for that witness. Rather, in response to the defense counsel’s characterization of the officer as "dishonest”, the prosecutor merely reminded the jurors that they were entitled to consider the background, training, and demeanor of the witness in assessing his credibility. The prosecutor expressed no personal opinion with regard to the officer’s veracity, and the comment was a proper response to the defense counsel’s attack on the officer’s credibility (see, People v Sykes, 151 AD2d 523 ; People v Alexandria, 126 AD2d 655 ; People v Singleton, 121 AD2d 752 ).

The defendant’s remaining challenges to the prosecutor’s summation have not been preserved for appellate review (see, CPL 470.05 [2]; People v Nuccie, 57 NY2d 818 ; People v Anderson, 153 AD2d 893 ). In any event, we find that the prosecutor "did not exceed the broad bounds of rhetorical comment permissible in closing argument” (People v Galloway, 54 NY2d 396 , 399). Thompson, J. P., Sullivan, Balletta and Lawrence, JJ., concur.

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