PEOPLE v. LEON

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

The PEOPLE of the State of New York, Respondent, v. Jose LEON, Defendant-Appellant.

Decided: January 25, 2007

SAXE, J.P., MARLOW, NARDELLI, SWEENY, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Mark Dwyer of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered December 2, 2004, convicting defendant, after a jury trial, of sexual abuse in the first degree (three counts) and endangering the welfare of a child, and sentencing him, as a persistent violent felony offender, to an aggregate term of 15 years to life, unanimously affirmed.

The challenged portions of the prosecutor's examination of a witness and of the prosecutor's summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motions made in regard to these matters.   To the extent that any aspects of the prosecutor's conduct could be viewed as improper, the court provided suitable curative actions that were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).   The jury is presumed to have followed the court's thorough instructions (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ).

The court properly adjudicated defendant a persistent violent felony offender on the basis of admissible evidence (see CPL 60.60[2];  400.15[7][a];  400.16 [2] ).   We have considered and rejected defendant's constitutional arguments concerning his persistent violent felony offender adjudication.