PEOPLE v. ROSADO

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

The PEOPLE of the State of New York, Respondent, v. Antonio ROSADO, also known as Antonio Rosario, Defendant-Appellant.

Decided: May 18, 2006

TOM, J.P., SAXE, NARDELLI, GONZALEZ, CATTERSON, JJ. Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Morrie I. Kleinbart of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered May 28, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 8 to 16 years, 8 to 16 years and 7 1/212 to 15 years, respectively, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion based on the prosecutor's brief, indirect summation reference to the fact that defendant did not testify.   This comment, which was responsive to an argument made in defense counsel's summation, was cut off by an objection, and it did not ask the jury to draw any inference from defendant's failure to testify.   Under the circumstances, the court's standard “no inference” instruction under CPL 300.10(2), which the jury is presumed to have followed, was sufficient to prevent any prejudice (see People v. Brown, 196 A.D.2d 465, 601 N.Y.S.2d 296 [1993], lv. denied 82 N.Y.2d 804, 604 N.Y.S.2d 940, 624 N.E.2d 1035 [1993] ).

After sufficient inquiry, the sentencing court properly determined that the reason defendant was not interviewed by the probation department was his refusal to be produced.   Accordingly, we reject his argument that the pre-sentence report is incomplete (see People v. Greene, 209 A.D.2d 541, 619 N.Y.S.2d 74 [1994], lv. denied 85 N.Y.2d 909, 627 N.Y.S.2d 332, 650 N.E.2d 1334 [1995] ).

We perceive no basis for reducing the sentence.