Opinion
September 27, 2001.
Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered January 12, 1998, convicting defendant, after a jury trial, of two counts of rape in the first degree and four counts of sexual abuse in the first degree, and sentencing him to an aggregate term of 7 to 14 years, unanimously affirmed.
Kristin A. Kirk, for respondent.
Donald A. Harwood, for defendant-appellant.
Before: Rosenberger, J.P., Mazzarelli, Ellerin, Saxe, Buckley, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility (see,People v. Gaimari, 176 N.Y. 84, 94).
The challenged portions of the prosecutor's opening statement could not have caused any prejudice to defendant since the court struck the remarks and issued curative instructions, which the jury is presumed to have followed (see, People v. Davis, 58 N.Y.2d 1102).
The court's limitation of defense counsel's summation was proper inasmuch as counsel persisted in making an argument that was not based on the evidence and which invited the jury to speculate (see, People v. Martinez, 214 A.D.2d 429, lv denied 86 N.Y.2d 738). The record does not support defendant's claim that the court accused defense counsel of improper conduct.
The challenged portions of the prosecutor's summation generally constituted proper comment on the evidence in fair response to the defense summation and did not deprive defendant of a fair trial (see,People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.