Opinion
04-29-2015
The PEOPLE, etc., respondent, v. Navarro JOHNSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Adolfsen, and Claibourne Henry of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Adolfsen, and Claibourne Henry of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered June 21, 2012, convicting him of attempted robbery in the first degree, attempted robbery in the second degree, assault in the third degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that certain comments made by the prosecutor during her summation were improper and denied him a fair trial is unpreserved for appellate review since he either failed to object to the comments he now challenges, made only a general objection, objected on grounds other than those currently raised, or failed to request additional instructions when the court gave curative instructions, and did not move for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2] ; People v. Joubert, 125 A.D.3d 686, 999 N.Y.S.2d 552 ; People v. Wallace, 123 A.D.3d 1151, 997 N.Y.S.2d 756 ; People v. Jorgensen, 113 A.D.3d 793, 794–795, 978 N.Y.S.2d 361 ). In any event, the challenged remarks were fair comment on the evidence, fair response to the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), or were not so flagrant or pervasive as to deny the defendant a fair trial (see People v. Thompson, 125 A.D.3d 899, 1 N.Y.S.3d 833 ; People v. Joubert, 125 A.D.3d 686, 999 N.Y.S.2d 552 ). To the extent that any prejudicial effect may have resulted from the challenged remarks, it was ameliorated by the court's instructions (see People v. Galloway, 54 N.Y.2d at 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Safian, 46 N.Y.2d 181, 190, 413 N.Y.S.2d 118, 385 N.E.2d 1046 ; People v. Jorgensen, 113 A.D.3d at 794–795, 978 N.Y.S.2d 361 ). Defense counsel's failure to object to the subject comments did not constitute ineffective assistance of counsel (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Wallace, 123 A.D.3d 1151, 997 N.Y.S.2d 756 ; People v. Rahman, 119 A.D.3d 820, 821, 989 N.Y.S.2d 306 ).
The sentence imposed was not excessive (see People v. Suitte,
90 A.D.2D 80, 83, 455 N.Y.S.2D 675 ).
ENG, P.J., LEVENTHAL, HALL and ROMAN, JJ., concur.