Opinion
August 7, 1995
Appeal from the Supreme Court, Queens County (Rosenzweig, J.).
Ordered that the judgment is affirmed.
The defendant's contention that his conviction should be reversed because of certain of the prosecutor's summation comments is unpreserved for appellate review. Defense counsel neither requested curative instructions nor moved for a mistrial on the basis of the remarks (see, People v. Medina, 53 N.Y.2d 951, 952). In any event, the trial court averted any potential prejudice by promptly instructing the jury that the burden of proving the defendant's guilt remained on the People (see, People v. Berg, 59 N.Y.2d 294, 299-300; People v. Contreras, 194 A.D.2d 685, 686). The remaining challenged comments were either proper response to the defense counsel's summation or proper comment on the evidence (see, People v. Galloway, 54 N.Y.2d 396, 401; People v. Ashwal, 39 N.Y.2d 105, 109-110).
In addition, the Supreme Court properly sentenced the defendant as a second felony offender. The People have the burden of proving the prior felony beyond a reasonable doubt (see, CPL 400.21[a]). Once the prior felony is established, as here, the burden shifts to the defendant to prove that the conviction was invalid (see, People v. Harris, 61 N.Y.2d 9, 15; People v Boomer, 187 A.D.2d 659, 661; People v. Fox, 117 A.D.2d 818, 819). The defendant did not present any evidence to support his allegation that his prior plea was obtained in violation of his constitutional rights. Accordingly, the defendant was properly adjudicated a second felony offender. Balletta, J.P., Coppertino, Pizzuto and Krausman, JJ., concur.