People v. Fanfair

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered May 31, 1989, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. We disagree with the defendant’s contention that he was deprived of a fair trial because of certain comments made by the prosecutor in summation. According to the defendant, the prosecutor suggested to the jury that the defendant had the burden of proving that his possession of a gun was temporary and lawful. The comments made by the prosecutor did not shift the burden of proof upon the defendant or convey a misconception to the jury that the People did not have a burden of proving that the possession was unlawful. In any event, the court’s charge on temporary and lawful possession cured any possible misconception (see, People v Perez, 132 AD2d 579; People v Ogelsby, 128 AD2d 556; People v Saylor, 115 AD2d 671; People v Boute, 111 AD2d 398, 399). In addition, the prosecutor’s comment that "no one is saying that criminals are smart”, while better left unsaid, did not, under the circumstances of this case, deprive the defendant of a fair trial. Finally, we find that the sentence was neither harsh nor excessive. Bracken, J. P., Sullivan, O’Brien and Ritter, JJ., concur.