People v. Smith

Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that the prosecutor shifted the burden of proof during his summation. The prosecutor’s comments were a proper response to defense counsel’s summation (see, People v Maisonet, 172 AD2d 274 , lv denied 78 NY2d 969 ; People v Peralta, 172 AD2d 155 , lv denied 78 NY2d 925 ). Any impropriety in the prosecutor’s cross-examination of defendant was not so egregious that it deprived defendant of a fair trial (see, People v Toumbis, 204 AD2d 1026 ; People v Dawkins, 203 AD2d 957 , 958, lv denied 84 NY2d 824 ).

The trial court properly declined to grant a mistrial based upon a communication between two jurors and the employer of one of those jurors. Given the nature of the information discussed, there is no likelihood that defendant was prejudiced (cf., People v Brown, 48 NY2d 388 , 394; People v Magnano, 175 AD2d 639 , lv denied 79 NY2d 860 ).

The testimony of the victim’s mother regarding the victim’s prompt complaint did not constitute bolstering (see, People v McDaniel, 81 NY2d 10 , 16-17; People v Guerra, 174 AD2d 502 , lv denied 78 NY2d 1076 ). The other alleged instances of bolstering are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We also decline to review the contention, raised for the first time on appeal, that the trial court exhibited partiality in its rulings and comments to defense counsel (see, People v Charleston, 56 NY2d 886 , 887). The sentence imposed is not unduly harsh or severe. (Appeal from Judgment of Ontario County Court, Henry, Jr., J. — Sexual Abuse, 1st Degree.) Present — Green, J. P., Lawton, Wesley, Davis and Boehm, JJ. (Filed Aug. 29, 1995.)