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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARIO NISVIS, Appellant.

Ordered that the judgment is affirmed.

All but one of the defendant's challenges to remarks made by the prosecutor during summation are unpreserved for appellate review, since he either failed to object or raised only general objections to the remarks, did not request curative instructions when his objections were sustained, and failed to move timely for a mistrial ( see CPL 470.05; People v Almonte, 23 AD3d 392, 394). In any event, most of the challenged remarks were either responsive to the arguments and issues raised by the defense or fair comment on the evidence ( see People v Montalvo, 34 AD3d 600, 601). To the extent certain of the remarks were improper, they did not deprive the defendant of a fair trial ( see People v Almonte, 23 AD3d at 394).

The defendant's one preserved challenge was that a comment made by the prosecutor improperly shifted the burden of proof. With respect to that challenge, the trial court remedied that impropriety in its instructions to the jury ( see People v Evans, 291 AD2d 569).

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PEOPLE v. NISVIS
(Nov 12, 2008)