PEOPLE v. THOMAS (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Sylvia THOMAS, Appellant.

Decided: February 04, 1998

Before PINE, J.P., and HAYES, WISNER, BOEHM and FALLON, JJ.

Edward J. Nowak by Elizabeth Clarke, Rochester, for Appellant. Howard R. Relin by Elizabeth Clifford, Rochester, for Respondent.

Defendant appeals from a judgment convicting her of criminal possession of a weapon in the second and third degrees (Penal Law §§ 265.03, 265.02 [3] ) and reckless endangerment in the first degree (Penal Law § 120.25). We reject the contention of defendant that she was deprived of a fair trial based upon a comment by the prosecutor in her opening statement. The prosecutor stated that the gun that defendant was charged with possessing and using was “able to produce the deadliest of all crimes, murder or potentially harm someone [sic]”. While defendant was not charged with murder, the prosecutor's use of that word was fair comment upon the evidence to be presented. In any event, there was no pervasive pattern of misconduct (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), nor was the prosecutor's comment so egregious that defendant was thereby deprived of a fair trial (see, People v. Corey, 233 A.D.2d 773, 774-775, 650 N.Y.S.2d 411, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359).

Judgment unanimously affirmed.

MEMORANDUM:

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