People v. Marti

• Decision Date: 08 June 1987
• Citation: 131 A.D.2d 597,516 N.Y.S.2d 599
• Parties: The PEOPLE, etc., Respondent, v. Eduardo MARTI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 599

516 N.Y.S.2d 599

131 A.D.2d 597

The PEOPLE, etc., Respondent, v. Eduardo MARTI, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

June 8, 1987

Philip L. Weinstein, New York City (Robert S. Dean, of counsel), for appellant. Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Richard T. Faughnan and Robert E. Lesser, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vinik, J.), rendered January 16, 1986, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that he was deprived of a fair trial by several allegedly prejudicial remarks made by the prosecutor during summation is without merit. The record reveals that the issue of the propriety of two of the comments has not been preserved for appellate review as a matter of law, as the defendant sought neither a curative instruction nor a mistrial after his objections to these statements were sustained (see, People v. Medina, 53 N.Y.2d 951, 441 N.Y.S.2d 442, 424 N.E.2d 276; People v. Ayala, 120 A.D.2d 600, 502 N.Y.S.2d 75, lv. denied 68 N.Y.2d 755, 506 N.Y.S.2d 1042, 497 N.E.2d 712). In any event, we conclude that the several challenged remarks, when evaluated in the context of the defense summation (see, People v. Marks, 6 N.Y.2d 67, 188 N.Y.S.2d 465, 160 N.E.2d 26, cert. denied 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620; People v. Pearson, 118 A.D.2d 737, 500 N.Y.S.2d 72, lv. denied 67 N.Y.2d 1055, 504 N.Y.S.2d 1031, 495 N.E.2d 364), "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). Additionally, we find unpersuasive the defendant's contention that the sentence he received was unduly harsh and excessive. The record reveals that the court was fully aware of the factors relevant to a sentencing determination, including the defendant's age and family background, his prior convictions for drug-related offenses, and the serious nature of the instant crimes; hence, we discern no error in the imposition of the challenged sentence (see, People v. Pedraza, 66 N.Y.2d 626, 495 N.Y.S.2d 30, 485 N.E.2d 237; People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864; People v....