PEOPLE v. CALABRESE

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Anthony CALABRESE, Defendant-Appellant.

Decided: May 27, 2004

TOM, J.P., ELLERIN, WILLIAMS, MARLOW, JJ. Laura R. Johnson, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered June 21, 2002, convicting defendant, after a jury trial, of promoting gambling in the first degree and possession of gambling records in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 1 1/212 to 3 years, unanimously affirmed.   The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50(5).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   The credible evidence, including the experienced officer's expert testimony on numbers operations, warranted the conclusion that defendant advanced gambling activity by picking up policy slips from a numbers location, and that the slips in his possession represented more than 600 bets.

Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the challenged remarks generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments, and that the summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).