PEOPLE v. ZABALA (2009)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered October 2, 2007, convicting defendant, after a jury trial, of attempted assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a persistent felony offender, to an aggregate term of 20 years to life, unanimously modified, on the law, to the extent of amending the sentence and commitment sheet to reflect that defendant was sentenced as a persistent felony offender rather than as a persistent violent felony offender, and otherwise affirmed.

 By failing to object, by making only generalized objections, and by failing to request further relief after the court took curative action, defendant has failed to preserve his present challenges to the People's cross-examination and summation, and we decline to review them in the interest of justice.   As an alternative holding, we find no basis for 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] ).   With regard to the challenged portion of the cross-examination of defendant, the court took actions that were sufficient to prevent any prejudice.   As for the summation, the remarks at issue were generally fair comment on the evidence, and any improprieties did not rise to the level of depriving defendant of a fair trial.

Defendant's sentencing as a persistent felony offender was constitutional (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194 [2005], cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473 [2005];  People v. Graham, 48 A.D.3d 265, 856 N.Y.S.2d 7 [2008], lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ).

The People concede that the sentence and commitment sheet should be amended to the extent indicated in order to correct the clerical error stating that defendant was sentenced as a persistent violent felony offender.