PEOPLE v. DIAZ (1998)

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered August 1, 1996, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.

 The prosecutor did not shift the burden of proof by commenting in summation on defendant's failure to call a material witness since defendant presented evidence with regard to said witness at trial (People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 646 N.E.2d 805).   Defendant's remaining challenges to comments made by the prosecutor during summation are unpreserved (People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the statements regarding the objectivity of the anonymous 911 caller were fair responses to defendant's summation (see, People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885), and that the isolated remark about no complaints having been filed against the arresting officers was insufficient to deprive defendant of a fair trial.   In any event, any impropriety was harmless in light of the overwhelming evidence of defendant's guilt.

Defendant was properly adjudicated a persistent felony offender.   Defendant did not sufficiently allege that any of his prior convictions were unconstitutionally obtained (People v. Harris, 61 N.Y.2d 9, 15, 471 N.Y.S.2d 61, 459 N.E.2d 170).

MEMORANDUM DECISION.