PEOPLE v. McKISSICK

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

The PEOPLE, etc., respondent, v. Marcus McKISSICK, appellant.

Decided: January 30, 2007

ROBERT W. SCHMIDT, J.P., STEPHEN G. CRANE, PETER B. SKELOS, and STEVEN W. FISHER, JJ. Lynn W.L. Fahey, New York, N.Y. (Tonya Plank of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Karol B. Mangum of counsel;  Carmencita-Mia Q. Fulgado on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 9, 2004, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the prosecutor made improper comments during summation is without merit inasmuch as the challenged remarks were fair comment on the evidence, permissible rhetorical remarks, or appropriate responses to the defense counsel's summation (see People v. Simon, 34 A.D.3d 852, 823 N.Y.S.2d 906;  People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614;  cf. People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564).

Moreover, the defendant's failure at sentencing to specify any particular allegation or allegations in the predicate felony statement he wished to controvert resulted in all allegations in the statement being deemed admitted (see CPL 400.15[3] ).   Accordingly, the defendant was properly adjudicated a second violent felony offender, and his belated claim at sentencing that he had been afforded inaccurate advice by his counsel before pleading guilty to the prior felony was, under the circumstances of this case, insufficient to warrant a hearing (see People v. Espinoza, 241 A.D.2d 554, 555, 661 N.Y.S.2d 244;  see also People v. Myron, 28 A.D.3d 681, 684, 814 N.Y.S.2d 198).

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