The People of the State of New York, Respondent, v. Derrick Waymon White, Appellant

The People of the State of New York, Respondent, v Derrick Waymon White, Appellant. [705 NYS2d 762] [MAJORITY] —Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that prosecutorial misconduct deprived him of a fair trial. A defense witness testified that defendant never had possession of the weapon at issue and that the witness himself held the weapon the entire evening. During his closing argument, defense counsel noted that the witness was an admitted liar, but argued that he had nothing to gain by his testimony and would not risk perjuring himself by lying. In response, the prosecutor attempted to comment upon the law of perjury, but Supreme Court sustained defense counsel’s objection. The prosecutor then stated that the witness was not at any risk of committing perjury. We conclude that, under the circumstances, the prosecutor’s statement was a fair response to defense counsel’s statements (see, People v Halm, 81 NY2d 819, 821). In any event, the statement was not so egregious as to deprive defendant of a fair trial (see, People v Plant, 138 AD2d 968, lv denied 71 NY2d 1031; People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711). (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Criminal Possession Weapon, 3rd Degree.) Present — Green, J. P., Hayes, Hurlbutt and Lawton, JJ.