Opinion
02-18-2015
The PEOPLE, etc., respondent, v. Kemar THOMPSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Danit Almog of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Danit Almog of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered November 9, 2011, convicting him of robbery in the first degree (three counts) and criminal possession of a weapon in the second 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 his opening statement and summation were improper and deprived him of a fair trial is unpreserved for appellate review, since the defendant either failed to object to the remarks he now challenges, made only a general objection, objected on grounds other than those currently raised, or failed to request additional instructions when the trial court gave curative instructions (see CPL 470.05[2] ; People v. Martin, 116 A.D.3d 981, 982–983, 983 N.Y.S.2d 813 ; People v. Santos, 105 A.D.3d 1064, 1065, 963 N.Y.S.2d 380 ; People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121 ). In any event, the defendant was not deprived of a fair trial. The challenged remarks constituted fair comment on the evidence, did not exceed the "broad bounds of rhetorical comment permissible in closing argument" ( People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Jean, 118 A.D.3d 1024, 1025, 987 N.Y.S.2d 630 ), or, where improper, "were not so flagrant or pervasive as to deprive the defendant of a fair trial" ( People v. Ward, 106 A.D.3d 842, 843, 964 N.Y.S.2d 642 ; see People v. Philbert, 60 A.D.3d 698, 874 N.Y.S.2d 540 ; People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ).
The sentencing minutes indicate that the court relied upon the appropriate factors in sentencing the defendant to a higher sentence than that which was offered during plea negotiations (see People v. Evans, 16 A.D.3d 595, 596, 792 N.Y.S.2d 124 ; People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ). There is no basis in the record to conclude that the defendant was punished for choosing to go to trial (see People v. Pena, 50 N.Y.2d at 411–412, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ). The sentence imposed was not excessive (see People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864 ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., LEVENTHAL, MILLER and MALTESE, JJ., concur.