PEOPLE v. SWAILS

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

The PEOPLE of the State of New York, Respondent, v. Rashiem SWAILS, Defendant-Appellant.

Decided: May 21, 1998

Before ROSENBERGER, J.P., and WALLACH, TOM and SAXE, JJ. Jacqueline M. Vernon, for Respondent. Laurence J. Sass, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered June 13, 1994, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 7 1/2 to 15 years, unanimously affirmed.

Defendant failed to preserve his current claim that the court did not follow the three-step Batson protocols in determining various claims of discriminatory exercise of peremptory challenges (People v. Williams, 238 A.D.2d 196, 656 N.Y.S.2d 724), and we decline to review them in the interest of justice.   Were we to review them, we would find that the court properly determined the issues raised, based upon its assessment of the proffered reasons for the peremptory challenges (see, People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 666 N.E.2d 542).   The court's express and implied findings as to pretextuality are entitled to great deference and are supported by the record.

 Since there was “a direct contradiction not attributable to mistake, assumption or faulty memory” between defendant's testimony and that of the People's main witnesses, the prosecutor properly inquired of defendant whether the People's witnesses were lying (People v. Overlee, 236 A.D.2d 133, 140, 666 N.Y.S.2d 572).

 Defendant's belated motion for a mistrial based on the prosecutor's summation comments was not adequate to preserve his current claims of error (People v. Molina, 242 A.D.2d 453, 662 N.Y.S.2d 255, lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 9, 691 N.E.2d 1035), and we decline to review them in the interest of justice.   Were we to review them, we would find no basis for reversal.   The court properly sustained objections to the prosecutor's summation comments when valid objections were entered, and gave appropriate instructions to the jury where necessary, which instructions presumably were understood and followed by the jury (People v. Davis, 58 N.Y.2d 1102, 462 N.Y.S.2d 816, 449 N.E.2d 710).   In all other respects, the prosecutor's summation arguments constituted fair comment on the evidence and appropriate response to the defense summation and did not serve to deprive defendant of a fair trial (see, People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

 Defendant's argument addressed to the purported variance between the indictment charging use of a “pistol” and the proof establishing use of a “revolver” is unpreserved and without merit.   The term “revolver” is interchangeable with the term “revolving pistol” (see, Long Is. Antique Gun Collectors Assn. v. Frank, 53 A.D.2d 644, 384 N.Y.S.2d 500;  People v. Wansker, 191 A.D. 875, 876, 182 N.Y.S. 782).

We have considered defendant's other claims of error and find them to be without merit.

MEMORANDUM DECISION.