People v. McIntyre

Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered February 20, 1990, convicting defendant, after a jury trial, of robbery in the second degree and, sentencing him to an indeterminate term of imprisonment of from 5 to 15 years to run concurrently with defendant’s convictions under two separate indictments, unanimously affirmed.

*256Defendant’s challenges to the prosecutor’s comments during summation are unpreserved as a matter of law. (CPL 470.05 [2]; People v Balls, 69 NY2d 641.) Were we to consider them, in the interest of justice, we would nonetheless find them to be without merit. The prosecutor’s comment that "we didn’t hear anything else other than reasonable doubt maybe 350 times”, in context, did not shift the burden of proof to the defendant. The prosecutor was entitled to respond to defense counsel’s statements that the People’s case was subject to reasonable doubt by arguing that defense counsel’s assertions were unsupported by the evidence. (People v Fermin, 165 AD2d 808, lv denied 76 NY2d 985.)

Furthermore, defendant was not denied a fair trial by the prosecutor’s comment that the jury was "too smart to get wrapped up in small meaningless details” and that they had "too much common sense to get wrapped up in this minutiae that doesn’t matter.” We find the comments not to exceed the broad bounds of rhetorical comment permissible in closing argument. (People v Fermin, supra.) Concur—Murphy, P. J., Wallach, Kupferman and Ross, JJ.