PEOPLE v. LEON (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie Leach, J.), rendered October 23, 2019, convicting him of attempted robbery in the first degree, burglary in the second degree, criminal possession of a weapon in the third degree (three counts), criminal mischief in the fourth degree (two counts), attempted burglary in the second degree, assault in the second degree, burglary in the third degree, criminal possession of burglar's tools, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the prosecutor's summation remarks were improper and deprived him of a fair trial is partially unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. O'Sullivan, 211 A.D.3d 751, 752, 177 N.Y.S.3d 914).  In any event, while some of the prosecutor's summation remarks were improper, under the circumstances of this case, the defendant was not deprived of a fair trial by the prosecutor's remarks, and any other error in this regard was harmless.  Although counsel is to be afforded the “widest latitude” in making summation arguments, it is fundamental that counsel stay “within the four corners of the evidence” and “avoid irrelevant comments which have no bearing on any legitimate issue in the case” (People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [internal quotation marks omitted];  see People v. Ortiz, 189 A.D.3d 891, 892–893, 137 N.Y.S.3d 139;  People v. Cunningham, 171 A.D.3d 1207, 1208, 98 N.Y.S.3d 611).

Here, it was improper for the prosecutor to state that the defendant's presumption of innocence was “gone” (see People v. Alfaro, 260 A.D.2d 495, 496, 688 N.Y.S.2d 567;  see generally People v. Green, 144 A.D.3d 589, 590, 42 N.Y.S.3d 24;  People v. Hatchcock, 96 A.D.3d 1082, 1085, 945 N.Y.S.2d 796), and to evoke the jury's sympathy for the complainants (see People v. Cunningham, 171 A.D.3d at 1208, 98 N.Y.S.3d 611;  People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123;  People v. Gurdon, 153 A.D.3d 1430, 1431, 61 N.Y.S.3d 333).  Nevertheless, in light of the Supreme Court striking most of the prosecutor's improper remarks and providing proper jury instructions, these errors were not so egregious or pervasive as to deprive the defendant of his right to a fair trial (see People v. Ingrassia, 207 A.D.3d 751, 752, 170 N.Y.S.3d 896;  People v. Dumervil, 205 A.D.3d 923, 925, 166 N.Y.S.3d 595).  Furthermore, any other error in this regard was harmless as there was overwhelming evidence of the defendant's guilt and no significant probability that these errors contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Ortiz, 189 A.D.3d at 892, 137 N.Y.S.3d 139;  People v. Cunningham, 171 A.D.3d at 1208, 98 N.Y.S.3d 611).

CONNOLLY, J.P., MILLER, DOWLING and LANDICINO, JJ., concur.