PEOPLE v. MILLER (2000)

Defendant contends that he was deprived of a fair trial by prosecutorial misconduct on summation.   We disagree.   The record fails to establish that defendant was prejudiced when the prosecutor pointed his finger at defendant during summation (see, People v. Duvall, 260 A.D.2d 183, 184, 688 N.Y.S.2d 142, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510).   Furthermore, the prosecutor's question, “Why do you bring a knife at 11:00 at night to get delmonico steaks?” falls within the broad scope of rhetorical comment permitted on summation (see generally, People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885).   Contrary to defendant's contention, the prosecutor did not specifically call defendant a thief (cf., People v. Stewart, 92 A.D.2d 226, 230-231, 459 N.Y.S.2d 853).   To the extent that the prosecutor's comments on summation were inappropriate, they were not so egregious as to deprive defendant of a fair trial (see, People v. Roopchand, 107 A.D.2d 35, 36-37, 485 N.Y.S.2d 332, affd. 65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924).

Judgment unanimously affirmed.

MEMORANDUM: