Opinion
01-11-2017
The PEOPLE, etc., respondent, v. Leon BUNTING, appellant.
Lynn W.L. Fahey, New York, NY (Jaclyn Epstein, Rhys Bortignon, Paul Carberry, Louis O'Neill, and Leila Hull of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and James C. Manning of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Jaclyn Epstein, Rhys Bortignon, Paul Carberry, Louis O'Neill, and Leila Hull of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and James C. Manning of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered October 28, 2013, as amended October 31, 2013, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment, as amended, is affirmed.
The defendant was convicted of assault in the second degree (Penal Law § 120.05[3] ) for causing injury to a police officer by striking him with a car while trying to evade the police.
The defendant's contention that certain statements made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Read, 97 A.D.3d 702, 703, 947 N.Y.S.2d 614 ). In any event, some of the challenged remarks made by the prosecutor in summation were fair comment on the evidence, remained within the broad bounds of rhetorical comment permissible in summations, or were responsive to the summation of defense counsel (see People v. Halm, 81 N.Y.2d 819, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Flowers, 102 A.D.3d 885, 886, 958 N.Y.S.2d 206 ). While some of the challenged remarks, including those which denigrated the defense, were improper (see People v. Irving, 130 A.D.3d 844, 15 N.Y.S.3d 62 ; People v. Brown, 26 A.D.3d 392, 812 N.Y.S.2d 561 ; People v. Pagan, 2 A.D.3d 879, 769 N.Y.S.2d 741 ), they were either sufficiently addressed by the Supreme Court's instructions to the jury or not so egregious as to have deprived the defendant of a fair trial (see People v. Singh, 138 A.D.3d 767, 768, 27 N.Y.S.3d 882 ; People v. Flowers, 102 A.D.3d at 886, 958 N.Y.S.2d 206 ; People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431 ; People v. Rogers, 92 A.D.3d 903, 939 N.Y.S.2d 496 ; People v. Banyan, 60 A.D.3d 861, 875 N.Y.S.2d 548 ).
Contrary to the defendant's contention, he was not denied the effective assistance of counsel due to defense counsel's failure to object to certain improper remarks made by the prosecutor during summation (see People v. Wragg, 26 N.Y.3d 403, 411–412, 23 N.Y.S.3d 600, 44 N.E.3d 898 ; People v. Tonge, 93 N.Y.2d 838, 840, 688 N.Y.S.2d 88, 710 N.E.2d 653 ; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., CHAMBERS, ROMAN and LaSALLE, JJ., concur.