The People, etc., respondent, v. Kelly Willis, appellant.

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

The People, etc., respondent, v. Kelly Willis, appellant.

2012–04962 (Ind.No. 9862/10)

Decided: November 26, 2014

JOHN M. LEVENTHAL, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.

Argued—October 21, 2014


Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered May 2, 2012, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the exclusion of his two children, ages one and three, from the courtroom deprived him of his right to a public trial is without merit (see People v. Echevarria, 21 NY3d 1;  People v. Henry, 119 AD3d 607;  People v. Davis, 43 AD3d 448;  People v. Santiago, 277 A.D.2d 473).

The defendant contends that he was deprived of his right to a fair trial as a result of various comments made by the prosecutor on summation.   The contention that the prosecutor improperly encouraged inferences of guilt based on facts not in evidence (see People v. Fisher, 18 NY3d 964) is without merit, since the comments concerned permissible inferences to be drawn from the evidence (see People v. Tafur, 174 A.D.2d 642).   The defendant's contentions that the prosecutor vouched for the truthfulness of police witnesses or bolstered their testimony, and shifted the burden of proof to the defense, are unpreserved for appellate review (see CPL 470.05[2];  People v. Melendez, 16 NY3d 869), since the defendant objected on grounds other than those currently raised, and failed to move for a mistrial on the specific grounds he now asserts on appeal (see People v. Jorgensen, 113 AD3d 793).   In any event, reversal is not warranted, as the prosecutor's remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation challenging police testimony (see People v. Smith, 64 AD3d 619;  People v. Morrison, 59 AD3d 569;  People v. Rodriguez, 207 A.D.2d 917).



Aprilanne Agostino

Clerk of the Court

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