PEOPLE v. DELANEY (2006)

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered October 7, 2003, convicting defendant, after a jury trial, of robbery in the first and second degrees and criminal possession of a weapon in the second and third degrees, and sentencing him to an aggregate term of 12 years, unanimously affirmed.

Defendant's arguments concerning the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find the challenged remarks were responsive to defense arguments, which accused the victim and the arresting officers of both lying and conspiracy, and they did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   To the extent that portions of the summation could be viewed as shifting the burden of proof or denigrating defense counsel, the court's curative actions were sufficient to prevent any prejudice.   While some of the language used by the prosecutor should have been avoided, this language was not so inflammatory as to warrant reversal.   In any event, were we to find any error, we would find it harmless in view of the overwhelming evidence of defendant's guilt.