People v. Rosado

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered May 28, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 8 to 16 years, 8 to 16 years and 772 to 15 years, respectively, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion based on the prosecutor’s brief, indirect summation reference to the fact that defendant did not testify. This comment, which was responsive to an argument made in defense counsel’s summation, was cut off by an objection, and it did not ask the jury to draw any inference from defendant’s failure to testify. Under the circumstances, the court’s standard “no inference” instruction under CPL 300.10 (2), which the jury is presumed to have followed, was sufficient to prevent any prejudice (see People v Brown, 196 AD2d 465 [1993], lv denied 82 NY2d 804 [1993]).

After sufficient inquiry, the sentencing court properly determined that the reason defendant was not interviewed by the probation department was his refusal to be produced. Accordingly, we reject his argument that the presentence report is incomplete (see People v Greene, 209 AD2d 541 [1994], lv denied 85 NY2d 909 [1995]).

We perceive no basis for reducing the sentence. Concur— Tom, J.P., Saxe, Nardelli, Gonzalez and Catterson, JJ.