PEOPLE v. JACKSON

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

The PEOPLE of the State of New York, Respondent, v. Troy JACKSON, Defendant-Appellant.

Decided: May 18, 2006

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, SWEENY, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered November 25, 2003, convicting defendant, after a jury trial, of sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

The verdict 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 [1903] ).   The fact that the jury reached a mixed verdict, acquitting defendant of rape in the first degree, does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).

The court properly exercised its discretion in denying defendant's mistrial motion based on the prosecutor's summation.   The challenged portions of the summation did not shift the burden of proof or deprive defendant of a fair trial.   Although the summation contained occasional improprieties, they were not so egregious as to warrant reversal (see 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] ).   Furthermore, we note that defendant made almost all of his objections after the summation was completed (see People v. Ortiz, 54 N.Y.2d 288, 292 n. 3, 445 N.Y.S.2d 116, 429 N.E.2d 794 [1981];  see also People v. Narayan, 54 N.Y.2d 106, 114, 444 N.Y.S.2d 604, 429 N.E.2d 123 [1981] ).

We have considered and rejected defendant's remaining claims.