fair response defense in New York

2021One of the two [*2]comments at issue was " 'a fair response to defense counsel's summation [and] fair comment on the evidence' " ( People v Green , 60 AD3d 1320, 1322 [4th Dept 2009], lv denied 12 NY3d 915 [2009]; see People v Halm , 81 NY2d 819 , 821 [1993]), and "County Court's jury charge cured any potential prejudice caused by statements of the prosecutor on summation that may have shifted the burden of proof" with respect to the remaining comment ( People v Waterford , 124 AD3d 1246 , 1247-1248 [4th Dept 2015], lv denied 26 NY3d 972 [2015]; see People v Rogers , 103 AD3d 1150 , 1153 [4th

2018Furthermore, "the prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the [witnesses'] character and credibility and justified the People's response" ( People v Halm , 81 NY2d 819 , 821 [1993]) and, here, we conclude that "the prosecutor's comments at issue on summation were a fair response to defense counsel's summation and did not exceed the bounds of legitimate advocacy' " ( People v Carrasquillo-Fuentes , 142 AD3d 1335 , 1338 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]; see Womack , 151 AD3d at 1756 ).

2025In any event, defendant's challenge is without merit as the prosecutor's remark was a fair response to defense counsel's summation ( see People v Galloway , 54 NY2d 396, 401 [1981]; People v Salaman , 231 AD2d 464 [1996]), and the remark was not so flagrant as to deprive defendant of a fair trial ( see People v Wilkinson , 185 AD3d 734, 737 [2020]; People v Williams , 147 AD3d 983 [2017]; People v Fields , 115 AD3d 673 [2014]).

2025In any event, defendant's challenge is without merit as the prosecutor's remark was a fair response to defense counsel's summation ( see People v Galloway , 54 NY2d 396, 401 [1981]; People v Salaman , 231 AD2d 464 [1996]), and the remark was not so flagrant as to deprive defendant of a fair trial ( see People v Wilkinson , 185 AD3d 734 , 737 [2020]; People v Williams , 147 AD3d 983 [2017]; People v Fields , 115 AD3d 673 [2014]).

2020In any event, upon our review of the record, we conclude that the prosecutor's summation was "either a fair response to defense counsel's summation or fair comment on the evidence" ( People v McEathron, 86 AD3d 915, 916 [4th Dept 2011], lv denied 19 NY3d 975 [2012] [internal quotation marks omitted]).

2019Furthermore, the prosecutor's remarks on summation "were either a fair response to defense counsel's summation or fair comment on the evidence" ( People v McEathron , 86 AD3d 915, 916 [4th Dept 2011], lv denied 19 NY3d 975 [2012] [internal quotation marks omitted]; see People v Goupil , 104 AD3d [*2]1215, 1216 [4th Dept 2013], lv denied 21 NY3d 943 [2013]).

2021One of the two [*2]comments at issue was " 'a fair response to defense counsel's summation [and] fair comment on the evidence' " ( People v Green , 60 AD3d 1320, 1322 [4th Dept 2009], lv denied 12 NY3d 915 [2009]; see People v Halm , 81 NY2d 819 , 821 [1993]), and "County Court's jury charge cured any potential prejudice caused by statements of the prosecutor on summation that may have shifted the burden of proof" with respect to the remaining comment ( People v Waterford , 124 AD3d 1246 , 1247-1248 [4th Dept 2015], lv denied 26 NY3d 972 [2015]; see People v Rogers , 103 AD3d 1150 , 1153 [4th

2017In any event, the comments at issue were within “ ‘the broad bounds of rhetorical comment permissible’ ” during summations (People v Williams, 28 AD3d 1059 , 1061 [2006], affd 8 NY3d 854 [2007], quoting People v Galloway, 54 NY2d 396, 399 [1981]), and were “ ‘either a fair response to defense counsel’s summation or fair comment on the evidence’ ” (People v Green, 60 AD3d 1320 , *1729 1322 [2009], lv denied 12 NY3d 915 [2009]; see People v McEathron, 86 AD3d 915, 916 [2011], lv denied 19 NY3d 975 [2012]).

2020The prosecutor's comments either were fair comment on the evidence and the reasonable inferences to be drawn therefrom, constituted a fair response to defense counsel's summation, or otherwise did not deprive the defendant of a fair trial ( see People v Ashwal , 39 NY2d 105, 109-110 ; People v King , 144 AD3d [*2]1176, 1176-1177; People v Nanand , 137 AD3d 945, 947-948 ).

2019In any event, this contention is without merit, since the comments alleged to be prejudicial were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, or a fair response to defense counsel's summation ( see People v Ashwal , 39 NY2d 105, 109-110 ; People v Marcus , 112 AD3d 652 ; People v Rogers , 106 AD3d 1029 ; People v Birot , 99 [*2]AD3d 933).

2020In any event, we conclude that the comments made by the prosecutor about the DNA evidence and other matters on summation were a fair response to defense counsel's summation and "did not exceed the bounds of legitimate advocacy" ( People v Melendez , 11 AD3d 983, 984 [*2][4th Dept 2004], lv denied 4 NY3d 888 [2005]).

2017Thus, we conclude that the prosecutor’s comments at issue on summation were “a fair response to defense counsel’s summation and did not exceed the bounds of legitimate advocacy” (People v Melendez, 11 AD3d 983, 984 [4th Dept 2004], lv denied 4 NY3d 888 [2005]; see generally Halm, 81 NY2d at 821).

2016Contrary to defendant’s contention, we conclude that he was not deprived of a fair trial by prosecutorial misconduct during the opening statement (see People v Castro, 281 AD2d 935, 935-936 [2001], lv denied 96 NY2d 860 [2001]), and that the alleged instances of prosecutorial misconduct on summation were either “a fair response to defense counsel’s summation or fair comment on the evidence” (People v Walker, 117 AD3d 1441, 1442 [2014], lv denied 23 NY3d 1044 [2014] [internal quotation marks omitted]; see People v Hassem, 100 AD3d 1460 , 1461 [2012], lv denied 20 NY3d 1099 [2013]).

2016Contrary to defendant’s contention, we conclude that he was not deprived of a fair trial by prosecutorial misconduct during the opening statement (see People v Castro, 281 AD2d 935, 935-936 [2001], lv denied 96 NY2d 860 [2001]), and that the alleged instances of prosecutorial misconduct on summation were either “a fair response to defense counsel’s summation or fair comment on the evidence” (People v Walker, 117 AD3d 1441, 1442 [2014], lv denied 23 NY3d 1044 [2014] [internal quotation marks omitted]; see People v Hassem, 100 AD3d 1460 , 1461 [2012], lv denied 20 NY3d 1099 [2013]).

2013In any event, the challenged remarks constituted a fair response to defense counsel’s summation or fair comment on the evidence or inferences drawn therefrom (see People v Banks, 74 AD3d at 1215 ; People v Rudd, 62 AD3d 729, 729 [2009]; People v Dorgan, 42 AD3d 505 [2007]), or constituted harmless error (see People v Reddick, 65 NY2d 835 , 836 [1985]; People v Crimmins, 36 NY2d 230, 241 [1975]; People v Kinard, 96 AD3d 976 [2012]; People v Mullings, 88 AJD3d 745 [2011]).

2013In any event, the challenged remarks constituted a fair response to defense counsel’s summation or fair comment on the evidence or inferences drawn therefrom (see People v Banks, 74 AD3d at 1215 ; People v Rudd, 62 AD3d 729, 729 [2009]; People v Dorgan, 42 AD3d 505 [2007]), or constituted harmless error (see People v Reddick, 65 NY2d 835 , 836 [1985]; People v Crimmins, 36 NY2d 230, 241 [1975]; People v Kinard, 96 AD3d 976 [2012]; People v Mullings, 88 AJD3d 745 [2011]).

2017We conclude that the remaining comments at issue were either a fair comment on the evidence or a fair response to defense counsel’s summation, and thus those comments did not exceed the bounds of legitimate advocacy (see People v Miller, 104 AD3d 1223, 1224 , lv denied 21 NY3d 1017 ).

2017We conclude that the remaining comments at issue were either a fair comment on the evidence or a fair response to defense counsel’s summation, and thus those comments did not exceed the bounds of legitimate advocacy (see People v Miller, 104 AD3d 1223, 1224 [2013], lv denied 21 NY3d 1017 [2013]).

2016In any event, we conclude that County Court properly determined that the prosecutor’s use of the slide presentation, as well as the attendant commentary thereon, was “either a fair response to defense counsel’s summation or fair comment on the evidence” (People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010] [internal quotation marks omitted]; see People v Weaver, 118 AD3d 1270, 1271 [2014], lv denied 24 NY3d 965 [2014]).

2016In any event, we conclude that County Court properly determined that the prosecutor’s use of the slide presentation, as well as the attendant commentary thereon, was “either a fair response to defense counsel’s summation or fair comment on the evidence” (People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010] [internal quotation marks omitted]; see People v Weaver, 118 AD3d 1270, 1271 [2014], lv denied 24 NY3d 965 [2014]).

2013Some of the prosecutor’s allegedly improper comments were “ ‘either a fair response to defense counsel’s summation or fair comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322 [2009], lv denied 12 NY3d 915 [2009] ), and the remaining alleged instances of misconduct were not so egregious as to deprive defendant of a fair trial (see People v Pringle, 71 AD3d 1450, 1451 [2010], lv denied 15 NY3d 777 [2010] ; People v Scott, 60 AD3d 1483, 1484 [2009], lv denied 12 NY3d 859 [2009]).

2013Some of the prosecutor’s allegedly improper comments were “ ‘either a fair response to defense counsel’s summation or fair comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322 [2009], lv denied 12 NY3d 915 [2009] ), and the remaining alleged instances of misconduct were not so egregious as to deprive defendant of a fair trial (see People v Pringle, 71 AD3d 1450, 1451 [2010], lv denied 15 NY3d 777 [2010] ; People v Scott, 60 AD3d 1483, 1484 [2009], lv denied 12 NY3d 859 [2009]).

2019Defendant failed to preserve his contention for our review with respect to many of the instances of alleged misconduct ( see CPL 470.05 [2]; People v Gottsche , 118 AD3d 1303 , 1306 [4th Dept 2014], lv denied 24 NY3d 1084 [2014]) and, in any event, that contention lacks merit because the prosecutor's remarks were "either a fair response to defense counsel's summation or fair comment on the evidence" ( People v Goupil , 104 AD3d 1215, 1216 [4th Dept 2013], lv denied 21 NY3d 943 [2013] [internal quotation marks omitted]).

2014In any event, we conclude that the majority of the prosecutor’s comments “were either a fair response to defense counsel’s summation or fair comment on the evidence” (People v Goupil, 104 AD3d 1215, 1216 [2013], lv denied 21 NY3d 943 [2013] [internal quotation marks omitted]; see People v Wilson, 104 AD3d 1231, 1233 [2013], lv denied 21 NY3d 1011 [2013], reconsideration denied 21 NY3d 1078 [2013]).

2011Those comments were “ ‘either a fair response to defense counsel’s summation or fair comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322 [2009], lv denied 12 NY3d 915 [2009]; see People v Figgins, 72 AD3d 1599, 1600 [2010], lv denied 15 NY3d 893 [2010]).

2011Those comments were “ ‘either a fair response to defense counsel’s summation or fair comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322 , lv denied 12 NY3d 915 ; see People v Figgins, 72 AD3d 1599, 1600 , lv denied 15 NY3d 893 ).

2017In any event, the challenged remarks were fair comment on the evidence or constituted a fair response to defense counsel’s summation (see People v Halm, 81 NY2d 819, 821 [1993]; People v Simmons, 106 AD3d at 1117 ; People v Morency, 104 AD3d 877, 878 [2013]).

2014In any event, the challenged remarks were fair comment on the evidence, constituted a fair response to defense counsel’s summation, or otherwise do not warrant reversal (see People v Galloway, 54 NY2d 396, 401 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v McGowan, 111 AD3d 850 [2013]; People v Barton, 110 AD3d 1089 [2013]; People v Morency, 104 AD3d at 878 ).

2022The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 ).

2021The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 ).

2010In the context of all the evidence, this comment was a fair response to defense counsel’s question (see People v Marks, 6 NY2d 67, 77 [1959], cert denied 362 US 912 [I960]; People v Greene, 13 AD3d 991, 993 [2004], Iv denied 5 NY3d 789 [2005]).

2007Many of the prosecutor’s summation comments were proper, as they were a fair response to the defense counsel’s summation and a fair comment on the evidence (see People v Galloway, 54 NY2d 396, 399, 401 [1981]; People v Marks, 6 NY2d 67, 77-78 [1959]; People v Woodson, 31 AD3d 678 [2006], lv denied 7 NY3d 871 [2006]; People v Martinez, 27 AD3d 665, 666 [2006]; People v Mattia, 8 AD3d 299, 299-300 [2004]; People v West, 237 AD2d 470, 472 [1997]).

2009While some of the remarks were improper, they were “not so flagrant or pervasive as to deny the defendant a fair trial” (People v Almonte, 23 AD3d 392, 394 [2005]; see People v Morales, 168 AD2d 85, 90 [1991]) and, thus, reversal is not warranted (see People v Galloway, 54 NY2d 396 [1981]; People v Almonte, 23 AD3d at 394 ; People v Roopchand, 107 AD2d 35, 36 [1985], affd 65 NY2d 837 [1985]).

1993To the extent that the issue is preserved, we find that the prosecutor’s comments constituted a fair response to the defense counsel’s summation (see, People v Rodriguez, 154 AD2d 488 ; People v Colonna, 135 AD2d 724 ), or were not so prejudicial as to deprive the defendant of a fair trial (see, People v Roopchand, 107 AD2d 35, 36 , affd 65 NY2d 837 ).