PEOPLE v. MOORE (1997)

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

PEOPLE of the State of New York, Respondent, v. William C. MOORE, Appellant.

Decided: September 30, 1997

Before DENMAN, P.J., and HAYES, CALLAHAN, DOERR and BOEHM, JJ.

James M. Perry by James Rizzo, Lockport, for appellant. Matthew J. Murphy, III by Timothy Murphy, Lockport, for respondent.

Defendant was convicted following a jury trial of robbery in the first degree, robbery in the second degree, assault in the first degree and assault in the second degree. The conviction arises from defendant's participation in the armed robbery of a 15-year-old boy who was selling crack cocaine. The victim was shot in the back as he attempted to flee and suffered serious personal injuries that rendered him paralyzed below the waist.

Defendant contends that his right to a jury trial was violated when County Court failed to inquire whether a juror was asleep during the court's charge. The court did not make any inquiry after advising defendant's attorney that the court was looking at the jurors during the charge and did not observe anyone sleeping. Because the court had the benefit of its own observations, there was no need for further inquiry to determine whether the juror was unqualified to continue to serve (see, People v. Richardson, 180 A.D.2d 902, 903, 580 N.Y.S.2d 521).

We agree with defendant that several of the prosecutor's remarks on summation were inflammatory and improperly denigrated the defense, and that an improper comment was made regarding the prospect of incarceration (see, People v. Ellis, 188 A.D.2d 1043, 1044, 592 N.Y.S.2d 200, lv. denied 81 N.Y.2d 970, 598 N.Y.S.2d 771, 615 N.E.2d 228; People v. Friedt, 280 App.Div. 836, 113 N.Y.S.2d 889). Immediately following the summation, however, the court gave adequate curative instructions. We conclude that the prosecutor's comments on summation were not so egregious that defendant was deprived of a fair trial and that the court's curative instructions erased any potential prejudice to defendant (see, People v. Coad, 237 A.D.2d 968, 656 N.Y.S.2d 984; People v. Plant, 138 A.D.2d 968, 526 N.Y.S.2d 300, lv. denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59).

In view of the serious nature of these crimes and defendant's criminal history, the sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM:

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