[*2]Appeal by defendant from a judgment of the Criminal Court, Richmond County (S. Modica, J.), rendered March 26, 2002, convicting him, after a jury trial, of assault in the third degree (Penal Law § 120.00 [1]) and trespass in the second degree (Penal Law § 140.15), and imposing sentence.

Judgment of conviction unanimously affirmed.

The trial court's Sandoval, Ventimiglia, and Molineux rulings prohibited the prosecution from going into the underlying facts of defendant's prior conviction or referring to his prior bad acts. During trial, the People elicited testimony that defendant's fingerprints were already on file with the New York City Police Department prior to his arrest on the instant charges, and testimony was provided that said prints could have been on file for various non-criminal reasons. In support of his trial strategy to show that defendant's fingerprints had been planted on crime scene evidence, defense counsel elicited testimony concerning the fact that defendant had been previously arrested, as well as the specific charges underlying said arrest, and also submitted defendant's fingerprint card for this arrest into evidence. During summations, both the prosecution and defense counsel again commented upon this evidence.

It is well settled that both the defense and prosecution have the right "to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide" (Williams v Brooklyn El. R. R. Co., 126 NY 96, 102; see also People v Ashwal, 39 NY2d 105). "Summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command" [*3](Ashwal, 39 NY2d at 109).

We find that the prosecutor herein fairly commented on the fingerprint and prior arrest evidence, which defense counsel also commented upon during his summation and said comments were not prejudicial. to defendant (see Ashwal, 39 NY2d at 105). Moreover, even though the prosecutor should not have stated "surprise" after she referred to defendant's prior assault and other charge in an improper effort to highlight criminal propensity, we find that defense counsel's objection thereto together with the trial court's prompt instructions to the jury — that the fingerprint card could only be considered for the fact that the police had defendant's fingerprints on file and it could not be considered as proof that defendant had a criminal conviction, or that he probably committed the charges herein —ameliorated any prejudicial impact of the statement on defendant (see People v Williams, 46 NY2d 1070, 1071; People v Arce, 42 NY2d 179, 189-191). Consequently, the prosecutor's remarks, while outrageous and reprehensible and cannot be condoned, constituted harmless error in the context of this case and therefore a new trial is not warranted (see People v Wood, 66 NY2d 374, 379-380; People v Crimmins, 36 NY2d 230, 241). Furthermore, the trial court acted properly in denying defendant's motion for a mistrial and defendant's due process rights to a fair trial were not violated.
Decision Date: October 16, 2003
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