PEOPLE v. STALLWORTH

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. John STALLWORTH, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[2] ).   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to the contention of defendant, he was not denied a fair trial based upon comments made by the prosecutor during summation.   Supreme Court instructed the jury to disregard the prosecutor's statement that a prosecution witness “will not get any deal” on a pending charge, thereby alleviating any prejudice arising from the prosecutor's improper reference to a matter not in evidence (see generally People v. Ashwal, 39 N.Y.2d 105, 111, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Clark, 195 A.D.2d 988, 991, 600 N.Y.S.2d 553).   The remainder of the prosecutor's summation was a fair response to defense counsel's summation and “ did not exceed the bounds of legitimate advocacy” (People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: