Opinion
3255.
Decided March 30, 2004.
Judgment, Supreme Court, Bronx County (Peter Benitez, J.), rendered November 14, 2002, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 18 years, unanimously affirmed.
Nancy D. Killian, for Respondent.
Lori Rifkin, for Defendant-Appellant.
Before: Buckley, P.J., Mazzarelli, Sullivan, Friedman, Gonzalez, JJ.
The verdict was not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490). There is no basis for disturbing the jury's determinations concerning identification and credibility. The purported inconsistencies in the victim's description of the robber are readily explainable, and the evidence warrants the conclusion that she provided a consistent description that closely matched defendant's characteristics.
The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motion made after the summation. Although, as the People concede, the prosecutor should not have made a comment directed at defense counsel, the court's curative instruction prevented this isolated remark from causing any prejudice ( see People v. Santiago, 52 N.Y.2d 865). The other challenged remarks constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, made in response to defense arguments ( see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976).
The court properly admitted testimony about the victim's description of her assailant to a detective, since this evidence provided the jury with an opportunity to compare defendant's appearance with a description provided shortly after the crime ( People v. Huertas, 75 N.Y.2d 487, 492-493; People v. Read, 228 A.D.2d 304, 305, lv denied 88 N.Y.2d 1071).
The court properly admitted a portion of a 911 tape as an excited utterance ( see People v. Johnson, 1 N.Y.3d 302; People v. Edwards, 47 N.Y.2d 493). The record establishes that the victim was operating under the influence of a startling event and had no time for studied reflection. Moreover, there was an added assurance of reliability since the victim was subject to cross-examination ( People v. Caviness, 38 N.Y.2d 227, 232).
We perceive no basis for reducing the sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.