Criminal Law · MBE-tested
The People of the State of New York, Respondent, v. David P. Miller, Appellant
272 A.D.2d 925708 N.Y.S.2d 779·New York Supreme Court, Appellate Division·2000·NY
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Opinion
The People of the State of New York, Respondent, v David P. Miller, Appellant.
[708 NYS2d 779]
[MAJORITY]
—Judgment unanimously affirmed. Memorandum: Defendant contends that he was deprived of a fair trial by prosecutorial misconduct on summation. We disagree. The record fails to establish that defendant was prejudiced when the prosecutor pointed his finger at defendant during summation (see, People v Duvall, 260 AD2d 183,184, lv denied 93 NY2d 924). Furthermore, the prosecutor’s question, “Why do you bring a knife at 11:00 at night to get delmonico steaks?” falls within the broad scope of rhetorical comment permitted on summation (see generally, People v Galloway, 54 NY2d 396, 399). Contrary to defendant’s contention, the prosecutor did not specifically call defendant a thief (cf, People v Stewart, 92 AD2d 226, 230-231). To the extent that the prosecutor’s comments on summation were inappropriate, they were not so egregious as to deprive defendant of a fair trial (see, People v Roopchand, 107 AD2d 35, 36-37, affd 65 NY2d 837). (Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Robbery, 1st Degree.) Present — Pigott, Jr., P. J., Pine, Scudder and Lawton, JJ.