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People v. Keys

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KEVIN KEYS, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered June 28, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 31/2 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Moskowitz, Renwick, Freedman, JJ.

5997/06

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility, including its evaluation of minor inconsistencies in testimony.

The court properly exercised its discretion in denying defendant's mistrial motion based on a summation remark by the prosecutor that allegedly shifted the burden of proof, because the curative action taken by the court during the summation was sufficient to prevent any prejudice. Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that none of the actions by the prosecutor of which defendant complains on appeal deprived him of a fair trial.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090205

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