People v Rios
2013 NY Slip Op 02419 [105 AD3d 873]
April 10, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2013


The People of the State of New York, Respondent,
v
Michael Rios, Appellant.

[*1] Steven Banks, New York, N.Y. (Jonathan Garelick of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered May 12, 2011, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

While we agree with the defendant that certain of the prosecutor's remarks during summation improperly denigrated defense counsel (see People v Davis, 39 AD3d 873, 875 [2007]; People v Torres, 223 AD2d 741, 742 [1996]), we find that any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the objections of the defendant and his codefendant and provided prompt curative instructions to the jury (see People v Rayford, 80 AD3d 780, 781 [2011]; People v Alexander, 50 AD3d 816, 817 [2008]; People v DeFigueroa, 182 AD2d 772, 773 [1992]), directing that the jury disregard those remarks, and explaining why the remarks were improper.

The remaining challenges to the prosecutor's remarks during summation are unpreserved for appellate review since defense counsel failed to object to these remarks or made only general objections, and these remarks were not the basis of his motion for a mistrial (see People v Read, 97 AD3d 702, 703 [2012]; People v Parker-Davidson, 89 AD3d 1114 [2011]). In any event, these remarks were within the broad bounds of rhetorical comment permissible in closing arguments and constituted fair response to arguments made by defense counsel in summation (see People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Kennedy, 101 AD3d 1045 [2012]; People v Caba, 101 AD3d 896 [2012]). Eng, P.J., Dickerson, Hall and Lott, JJ., concur.