PEOPLE v. BOSTIC

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Derrick BOSTIC, Defendant-Appellant.

Decided: February 28, 2006

SAXE, J.P., MARLOW, GONZALEZ, CATTERSON, McGUIRE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Lisa Lewis of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Benjamin Cheeks of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 9, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds (two counts), criminal sale of a controlled substance in the third degree (two counts), and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of 6 to 12 years, unanimously affirmed.

 Since defendant only made generalized objections, his challenges to the People's summation are unpreserved (People v. Tonge, 93 N.Y.2d 838, 839-840, 688 N.Y.S.2d 88, 710 N.E.2d 653 [1999] ), and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the challenged remarks constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, made 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 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

 Defendant's challenge to the court's questioning of him during his testimony is also unpreserved (see People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399, 438 N.E.2d 1114 [1982] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the court's minimal participation, consisting of only two clarifying questions, did not deprive defendant of a fair trial (see People v. Moulton, 43 N.Y.2d 944, 945-946, 403 N.Y.S.2d 892, 374 N.E.2d 1243 [1978] ).

We perceive no basis for reducing the sentence.