People v. Ely , 845 N.Y.S.2d 734 ( 2007 )

Judgment, Supreme Court, New York County (Philip M. Grella, J.), rendered November 17, 2003, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion, made on the ground that a portion of the prosecutor’s summation shifted the burden of proof. The remarks in question were responsive to defendant’s summation and did not mislead the jury as to the appropriate burden of proof. As to defendant’s remaining summation claims, and his related evidentiary argument, there was nothing in the prosecutor’s conduct that was so egregious as to warrant reversal (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant’s constitutional challenge to the procedure under which he was adjudicated a persistent violent felony offender is without merit (see Almendarez-Torres v United States, 523 US 224 [1998]). We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Friedman, Sullivan, Gonzalez and Catterson, JJ.