People v. Perez

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered November 17, 1988, convicting defendant after a jury trial of two counts of robbery in the first degree and one count of burglary in the first degree, and sentencing him to three concurrent terms of from 12-Vi to 25 years, to run concurrently with defendant’s conviction under Indictment No. 4961/87, unanimously affirmed.

*166The uncontradicted testimony of complainants indicated that defendant and co-defendant entered complainants’ apartment, tied up and threatened the occupants with guns and ransacked the dwelling. The complainants were able to overpower the perpetrators, who were arrested when the police arrived.

During his summation at trial, the prosecutor told the jury that "it’s just disgusting,” referring to the defendants’ actions. Defense counsel objected to this remark. The trial court ordered the word "disgusting” stricken from the record. The prosecutor stated that all the complainants want "is justice”. The court overruled the objection to this comment. Defense counsel moved for a mistrial based on the prosecutor’s allegedly emotional remarks to the jury. The motion was denied. The court instructed the jury that sympathy should play no part in their deliberations and that any matter stricken from the record should be totally disregarded.

The prosecutor’s call for "justice” to be done was clearly permissible. (See, People v Galloway, 54 NY2d 396, 401.) As for the stricken remark, any prejudice was dissipated by the trial court’s prompt and clear advisory to the jury, which the defense did not object to, that the comment was improper and must be disregarded. (People v Wood, 66 NY2d 374, 381.)

In any event, any error in the prosecutor’s remarks was harmless because there is little chance that it had any effect on the jury’s decision, given the overwhelming and undisputed evidence of defendant’s guilt. (People v Crimmins, 36 NY2d 230, 242.) Concur — Murphy, P. J., Ross, Asch, Kassal and Smith, JJ.