Opinion
October 28, 1991
Appeal from the Supreme Court, Kings County (Kreindler, J.).
Ordered that the judgment is affirmed.
We disagree with the defendant's contention that he was deprived of a fair trial because of certain comments made by the prosecutor in summation. According to the defendant, the prosecutor suggested to the jury that the defendant had the burden of proving that his possession of a gun was temporary and lawful. The comments made by the prosecutor did not shift the burden of proof upon the defendant or convey a misconception to the jury that the People did not have a burden of proving that the possession was unlawful. In any event, the court's charge on temporary and lawful possession cured any possible misconception (see, People v. Perez, 132 A.D.2d 579; People v. Ogelsby, 128 A.D.2d 556; People v. Saylor, 115 A.D.2d 671; People v. Boute, 111 A.D.2d 398, 399). In addition, the prosecutor's comment that "no one is saying that criminals are smart", while better left unsaid, did not, under the circumstances of this case, deprive the defendant of a fair trial.
Finally, we find that the sentence was neither harsh nor excessive. Bracken, J.P., Sullivan, O'Brien and Ritter, JJ., concur.