PEOPLE v. SIMPSON (2008)

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered September 13, 2005, convicting defendant, after a jury trial, of four counts each of robbery in the first and second degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 35 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion, made after the court had completed its charge to the jury, that was based on the prosecutor's attempt in summation to explain the absence of fingerprint evidence.   The comment constituted a fair response to the defense summation (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 other challenge to the prosecutor's summation is unpreserved and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.