PEOPLE v. BRAGG (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), rendered June 26, 2015, as amended July 7, 2015, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendant's contention that the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) deprived him of his constitutional right to a fair trial is unpreserved for appellate review, as he did not raise any constitutional challenge to the Sandoval ruling before the trial court (see CPL 470.05[2];  People v. Wheelings, 137 A.D.3d 1310, 1311, 28 N.Y.S.3d 435).  In any event, the court's Sandoval ruling was not an improvident exercise of discretion.  The court properly balanced the probative value of the defendant's prior convictions with respect to the issue of the defendant's credibility against the risk of unfair prejudice to the defendant (see People v. Paige, 88 A.D.3d 912, 912, 931 N.Y.S.2d 262;  People v. Celleri, 29 A.D.3d 707, 709, 814 N.Y.S.2d 270).

The defendant's contention that certain comments made by the prosecutor during her opening statement and summation were improper and deprived him of a fair trial is unpreserved for appellate review, since the defendant either failed to object to the remarks he now challenges, or made only a general one-word objection and failed to either request additional instructions when the trial court gave curative instructions or move for a mistrial based on the sustained objection (see CPL 470.05[2];  People v. Martin, 116 A.D.3d 981, 983 N.Y.S.2d 813;  People v. Allen, 114 A.D.3d 958, 982 N.Y.S.2d 322;  People v. Morel, 297 A.D.2d 757, 747 N.Y.S.2d 553).  In any event, the defendant's contention is without merit, as most of the remarks were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defendant's summation, or permissible rhetorical comment (see People v. Young, 141 A.D.3d 551, 552, 35 N.Y.S.3d 248;  People v. Martin, 116 A.D.3d at 982–983, 983 N.Y.S.2d 813;  People v. Allen, 114 A.D.3d at 959, 982 N.Y.S.2d 322).  To the extent that some of the prosecutor's remarks made during her opening statement and summation were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146;  People v. Walston, 196 A.D.2d 903, 904, 602 N.Y.S.2d 152).

At the request of the prosecutor, the Supreme Court precluded the defense counsel from arguing in her summation that the testimony of a detective that the defendant consented to provide a buccal swab of his DNA for testing demonstrated the defendant's consciousness of innocence.  The defendant's contention on appeal that the preclusion of this summation argument deprived him of his constitutional right to present a defense is unpreserved for appellate review (see CPL 470.05[2];  People v. Taylor, 40 A.D.3d 782, 783, 835 N.Y.S.2d 442), and, in any event, without merit (see People v. Ross, 56 A.D.3d 380, 380–381, 868 N.Y.S.2d 185).

RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.