PEOPLE v. SAEZ (2008)

Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered July 15, 2005, convicting defendant, after a jury trial, of two counts of assault in the first degree, and sentencing her to concurrent terms of 18 years, unanimously affirmed.   Judgment, same court (Lawrence H. Bernstein, J.), rendered July 19, 2005, convicting defendant, upon her plea of guilty, of assault in the second degree, and sentencing her to a consecutive term of 4 years, unanimously modified, on the law, to the extent of reducing the period of post-release supervision from 3 1/212 years to 3 years, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility, including its resolution of inconsistencies in testimony and its rejection of defendant's justification defense.

Defendant's argument concerning a reference during trial to her pretrial incarceration is indistinguishable from an argument that this Court rejected on the similarly situated codefendant's appeal (People v. Melendez, 50 A.D.3d 485, 855 N.Y.S.2d 146 [2008], lv. denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 [2008] ), and there is no reason to reach a different result here.

By failing to object, by making generalized objections, or by failing to request further relief after the court took curative actions, defendant failed to preserve her other claims of prosecutorial misconduct and we decline to review them in the interest of justice.   As an alternative holding, we find that the challenged conduct did not deprive defendant of a fair trial (see 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 the prosecutor's summation contained improprieties, the court's curative instructions sufficed to prevent any prejudice.

We perceive no basis for reducing the sentence.   However, as the People concede, the maximum period of post-release supervision permitted for defendant's second-degree assault conviction, given the date of the crime's commission, was three years (see § 70.45[2] ).