PEOPLE v. ROBINSON (2009)

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered October 31, 2007, convicting defendant, after a jury trial, of assault in the second degree and three counts of attempted assault in the second degree, and sentencing him, as a second felony offender, to a term of 3 years and three terms of 1 1/212 to 3 years, all to be served consecutively, unanimously affirmed.

The court properly exercised its discretion when it excused all prospective jurors who would have been unavailable due to a two-day religious observance that immediately preceded a weekend (see People v. Paulino, 287 A.D.2d 302, 731 N.Y.S.2d 152 [2001], lv. denied 97 N.Y.2d 686, 738 N.Y.S.2d 302, 764 N.E.2d 406 [2002] ).   A recess to accommodate these panelists' religious obligations would have seriously disrupted scheduling in this short trial, because the limitations on recessed deliberations set forth in CPL 310.10(2) would have required the court to charge the jury almost a week after the expected close of testimony.   The panelists were not excluded because of their religion, but because of their unavailability within the context of the particular case.

Defendant's general objections failed to preserve his present challenges to the prosecutor's summation (see e.g. People v. Harris, 98 N.Y.2d 452, 492, 749 N.Y.S.2d 766, 779 N.E.2d 705 [2002] ), and we decline to review them in the interest of justice.   As an alternative holding, we find that the comments at issue were proper responses to defendant's attacks on the credibility of the People's witnesses (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] ).

The surcharges and fees were properly imposed (see People v. Guerrero, 12 N.Y.3d 45, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009] ).   We perceive no basis for reducing the sentence.