PEOPLE v. HARRIS (2009)

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered June 13, 2007, convicting defendant, after a jury trial, of robbery in the second degree, grand larceny in the second degree, and four counts of larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 12 years, 7 to 14 years and 2 to 4 years (four terms), unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion made after the prosecutor's summation.   To the extent that the prosecutor's comments may be viewed as commenting on defendant's exercise of his right to a trial, the court's prompt curative actions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).   Defendant's remaining challenges to the summation do not warrant reversal (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] ).

Defendant's Confrontation Clause claim is unpreserved (see e.g. People v. Lopez, 25 A.D.3d 385, 808 N.Y.S.2d 648 [2006], lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255 [2006] ), and we decline to review it in the interest of justice.   As an alternative holding, we find that the document at issue was not testimonial (see People v. Freycinet, 11 N.Y.3d 38, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008];  People v. Rawlins, 10 N.Y.3d 136, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008] ).

We perceive no basis for reducing the sentence.   Defendant's argument concerning the mandatory surcharge and fees is unavailing (see People v. Guerrero, 12 N.Y.3d 45, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009] ).