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People v. Scurry

123 A.D.3d 949 Court N.Y. App. Div. Decision date 2014-12-17 English

Judges Mastro, J.P., Roman, Sgroi and Maltese, JJ., concur.

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p. 949
The People of the State of New York, Respondent, v Carey Scurry, Appellant.
[996 NYS2d 732]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered June 4, 2012, convicting him of burglary in the second degree (three counts) and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the People’s contention, the defendant preserved for appellate review most of his claims that the prosecutor engaged in improper questioning during cross-examination and that various comments made by the prosecutor during the summation were improper and deprived him of a fair trial (see CPL 470.05 [2]; People v De Jesus, 42 NY2d 519 , 526 [1977]). However, all of the challenged questioning and remarks were either within the broad bounds of rhetorical comment permissible in closing arguments (see People v Galloway, 54 NY2d 396 , 399 [1981]; People v McHarris, 297 AD2d 824 , 825 [2002]), fair response to defense counsel’s summation (see People v Marcus, 112 AD3d 652 , 653 [2013]; People v Phillips, 285 AD2d 477 , 478 [2001]), fair comment on the defendant’s testimony and other evidence (see People v Wilson, 77 AD3d 858 , 859 [2010]; People v Siriani, 27 AD3d 670 [2006]), cured by the trial court’s charge

p. 950
and instructions to the jury (see People v Flowers, 102 AD3d 885 , 886 [2013]; People v Pocesta, 71 AD3d 920 , 921 [2010]; People v Wilson, 50 AD3d 711 , 712 [2008]), or, if improper, were not so egregious as to deprive the defendant of a fair trial (see People v Persaud, 98 AD3d 527 , 529 [2012]; People v Pocesta, 71 AD3d at 921 ).

Mastro, J.P., Roman, Sgroi and Maltese, JJ., concur.

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