People v. Chicco

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered June 21, 1988, convicting defendant, after a jury trial, of burglary in the third degree, grand larceny in the second degree and criminal mischief in the fourth degree and sentencing him, as a predicate felony offender, to concurrent, indeterminate terms of from 316 to 7 years’ imprisonment on the burglary and grand larceny counts and a concurrent definite term of one year’s imprisonment on the criminal mischief count, unanimously affirmed. Defendant and an accomplice were caught red handed in an ice cream factory in the Bronx, after removing money from the company’s safe. The accomplice had a shotgun and a white bag containing $27,000. Defendant had a police radio scanner. The issue of whether or not the shotgun was loaded was sharply contested at trial, and defense counsel concentrated on this issue in his summation. Based on this, the prosecutor argued to the jury that defense counsel had conceded defendant’s guilt of third degree burglary. This was an inappropriate argument (see, People v Pauli, 130 AD2d 389, 393, appeal dismissed 70 NY2d 911). Nevertheless, defense counsel did not object to the remark and, although he later moved for a mistrial, he did not accept the trial court’s invitation to submit a proposed curative instruction. Further, he took no exception to the charge as given. In short, defense counsel made no attempt to avail himself of opportunities to neutralize the effect of the prosecutor’s comment. In light of the overwhelming evidence of defendant’s guilt, we affirm. Concur —Kupferman, J. P., Sullivan, Rosenberger, Kassal and Smith, JJ.