Opinion
11-26-2014
The PEOPLE, etc., respondent, v. Kelly WILLIS, appellant.
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.
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.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN and SHERI S. ROMAN, JJ.
Opinion 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 N.Y.3d 1, 966 N.Y.S.2d 747, 989 N.E.2d 9 ; People v. Henry, 119 A.D.3d 607, 988 N.Y.S.2d 686 ; People v. Davis, 43 A.D.3d 448, 840 N.Y.S.2d 630 ; People v. Santiago, 277 A.D.2d 473, 715 N.Y.S.2d 911 ).
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 N.Y.3d 964, 944 N.Y.S.2d 453, 967 N.E.2d 676 ) is without merit, since the comments concerned permissible inferences to be drawn from the evidence (see People v. Tafur, 174 A.D.2d 642, 571 N.Y.S.2d 104 ). 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 N.Y.3d 869, 925 N.Y.S.2d 6, 948 N.E.2d 1290 ), 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 A.D.3d 793, 978 N.Y.S.2d 361 ). 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 A.D.3d 619, 883 N.Y.S.2d 94 ; People v. Morrison, 59 A.D.3d 569, 873 N.Y.S.2d 159 ; People v. Rodriguez, 207 A.D.2d 917, 616 N.Y.S.2d 661 ).