People v. Baldo
| Decision Date | 22 January 1985 |
| Citation | 484 N.Y.S.2d 114,107 A.D.2d 751 |
| Parties | The PEOPLE, etc., Respondent, v. Theresa Ann BALDO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard C. Finke, and William E. Hellerstein, New York City, for appellant (one brief filed).
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lisa Margaret Smith and Rosalyn H. Richter, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.
Before TITONE, J.P., and MANGANO, WEINSTEIN and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 29, 1983, convicting her of grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
Upon review of the record, we conclude that the prosecutor's summation remarks now challenged by the defendant do not warrant reversal. First, it is noted that, contrary to the defendant's contention, the prosecutor in summation did not improperly comment on or refer to the defendant's failure to testify or call witnesses on her behalf. Rather, the prosecutor directed the jury's attention to the fact that there was no evidence or testimony in the record to support the asserted defense that the defendant did not knowingly or voluntarily participate in the crime in question. Clearly the prosecutor's remarks were a fair comment on the evidence. These remarks, in any event, were not objected to at trial by defense counsel and accordingly the defendant's challenge thereto was not preserved for appellate review (People v. Nuccie, 57 N.Y.2d 818, 819, 455 N.Y.S.2d 593, 441 N.E.2d 1111; People v. Gonzalez, 102 A.D.2d 895, 477 N.Y.S.2d 66). Second, with respect to the prosecutor's remark concerning the defendant's failure to report the crime to the police as being evidence of her guilt, the defense counsel's objection thereto was sustained and immediate curative instructions were given. Since the adequacy of the court's curative instructions was never challenged, the defendant's objection to the comment was not preserved for appellate review (People v. Medina, 53 N.Y.2d 951, 952-953, 441 N.Y.S.2d 442, 424 N.E.2d 276; People v. Sorgente, 90 A.D.2d 559, 560, 455 N.Y.S.2d 142). Similarly, the prosecutor's summation remarks regarding the fact that the complainant's father had been killed in an unrelated crime were also not objected to and thus not preserved for review. In any event, we find these remarks to constitute fair comment...
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