People v. Arrocha

• Decision Date: 05 June 1989
• Citation: 543 N.Y.S.2d 330,151 A.D.2d 490
• Parties: The PEOPLE, etc., Respondent, v. Jose ARROCHA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 330

543 N.Y.S.2d 330

151 A.D.2d 490

The PEOPLE, etc., Respondent, v. Jose ARROCHA, Appellant.

Supreme Court of New York, Appellate Division, Second Department.

June 5, 1989

Philip L. Weinstein, New York City (William A. Loeb, of counsel), for appellant. Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Catherine Arcabascio, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 16, 1987, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant contends that he was deprived of a fair trial by statements made by the prosecutor during the cross-examination of the defendant and in summation. Since the defendant either failed to object to the statements complained of, or failed to request curative instructions or a mistrial in those instances where an objection was registered and sustained, his contentions are unpreserved for appellate review (see, CPL 470.05[2]; People v. Comer, 73 N.Y.2d 955, 540 N.Y.S.2d 997, 538 N.E.2d 349; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276; People v. Conethan, App.Div., 538 N.Y.S.2d 56; People v. Rivera, 142 A.D.2d 615, 530 N.Y.S.2d 270, lv. denied 72 N.Y.2d 1049, 534 N.Y.S.2d 948, 531 N.E.2d 668; People v. Walters, 116 A.D.2d 757, 497 N.Y.S.2d 943, lv. denied 67 N.Y.2d 891, 501 N.Y.S.2d 1043, 492 N.E.2d 1250). In any event, the summation comments of which the defendant complains did not exceed the broad bounds of rhetorical comment permissible in closing argument (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885) and constituted fair rebuttal to certain assertions made by defense counsel in his summation (see also, People v. Martin, App.Div., 540 N.Y.S.2d 252; People v. Dupree, App.Div., 538 N.Y.S.2d 617; People v. Miller, 143 A.D.2d 1055, 533 N.Y.S.2d 756, lv. denied, 73 N.Y.2d 858, 537 N.Y.S.2d 504, 534 N.E.2d 342). Finally, since the court acted within the statutory limits and no circumstances have been shown warranting a reduction in the sentence, there is no reason to disturb it (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

KOOPER, J.P., and SPATT, HARWOOD and ROSENBLATT, JJ., concur.