PEOPLE v. KANIOS (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered October 25, 2005, convicting him of manslaughter in the second degree and felony leaving the scene without reporting, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the second degree beyond a reasonable doubt (see People v. Jenneman, 37 A.D.3d 736, 737, 832 N.Y.S.2d 207;  People v. Henrius, 6 A.D.3d 548, 774 N.Y.S.2d 400;  People v. Wolz, 300 A.D.2d 606, 752 N.Y.S.2d 382;  People v. Miller, 286 A.D.2d 981, 730 N.Y.S.2d 617;  People v. Poliakov, 167 A.D.2d 115, 116, 561 N.Y.S.2d 435).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant's challenge to the prosecutor's summation is unpreserved for appellate review since the defendant made only general objections, failed to request curative instructions, and did not timely move for a mistrial on the ground that any remarks were improper (see CPL 470.05 [2];  People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017;  People v. Salnave, 41 A.D.3d 872, 874, 838 N.Y.S.2d 657).   In any event, the comments alleged to be prejudicial were all either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), or responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885).   The prosecutor's summation comment about the defendant's departure from the scene of the crime did not impermissibly shift the burden of proof (see People v. Moore, 29 A.D.3d 825, 814 N.Y.S.2d 277).