The People, etc., respondent, v. Jimmy Ayala, appellant. (2010)

Submitted-December 18, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango, J.), rendered December 6, 2007, convicting him of burglary in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's specific contentions regarding the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371) are unpreserved for appellate review (see CPL 470.05[2];  People v. Melvin, 223 A.D.2d 604).   In any event, the Supreme Court's ruling struck an appropriate balance between the probative value of the defendant's prior convictions on the issue of his credibility and the possible prejudice to him (see People v. Mathis, 55 AD3d 628;  People v. Smith, 49 AD3d 671;  People v. Jones, 41 AD3d 507, 508).

The defendant's contention that he was deprived of a fair trial by certain comments made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Garguilio, 57 AD3d 797, 798).   In any event, the challenged comments either were within the bounds of permissible rhetorical comment (see People v. Galloway, 54 N.Y.2d 396, 399), were fair comment on the evidence (see People v. McHarris, 297 A.D.2d 824, 825), were fair response to defense counsel's summation (see People v. Adamo, 309 A.D.2d 808, 810;  People v. Vaughn, 209 A.D.2d 459, 459-460), or constituted harmless error (see People v. Crimmins, 36 N.Y.2d 230).   Finally, contrary to the defendant's contention, defense counsel's failure to object to the prosecutor's comments during summation did not constitute ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708).

DILLON, J.P., COVELLO, BELEN and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court