Opinion
2018–07122 Ind. No. 839/17
02-16-2022
The PEOPLE, etc., respondent, v. Jose RODRIGUEZ, appellant.
Thomas J. Butler, Melville, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Libbi L. Vilher of counsel), for respondent.
Thomas J. Butler, Melville, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Libbi L. Vilher of counsel), for respondent.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Felice J. Muraca, J.), rendered May 9, 2018, convicting him of disruption or disturbance of a religious service, funeral, burial, or memorial service and menacing in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his motion for a mistrial on the ground that certain comments made by the prosecutor during summation were improper. "The decision to declare a mistrial rests with the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is necessary to protect the defendant's right to a fair trial" ( People v. Redmon, 81 A.D.3d 752, 752, 917 N.Y.S.2d 229 [internal quotation marks omitted]; see People v. Ellis, 166 A.D.3d 993, 996–997, 88 N.Y.S.3d 537, affd 34 N.Y.3d 1092, 116 N.Y.S.3d 654, 139 N.E.3d 1234 ). Here, the challenged summation comments were responsive to defense counsel's summation (see People v. Jackson, 41 A.D.3d 498, 500, 838 N.Y.S.2d 108 ). To the extent that any comment was improper, the error was not so egregious as to deprive the defendant of a fair trial (see People v. Johnson, 175 A.D.3d 1130, 1131, 108 N.Y.S.3d 127 ; People v. Giddens, 161 A.D.3d 1191, 1194, 78 N.Y.S.3d 355 ). Moreover, the court instructed the jurors that they were the finders of fact, that the arguments of counsel were not evidence, and that they were to assess the witnesses's credibility (see People v. Brooks, 89 A.D.3d 746, 931 N.Y.S.2d 894 ).
IANNACCI, J.P., RIVERA, MALTESE and FORD, JJ., concur.