People v. Moore , 662 N.Y.S.2d 880 ( 1997 )

Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of robbery in the first degree, robbery in the second degree, assault in the first degree and assault in the second degree. The conviction arises from defendant’s participation in the armed robbery of a 15-year-old boy who was selling crack cocaine. The victim was shot in the back as he attempted to flee and suffered serious personal injuries that rendered him paralyzed below the waist.

Defendant contends that his right to a jury trial was violated when County Court failed to inquire whether a juror was asleep during the court’s charge. The court did not make any inquiry after advising defendant’s attorney that the court was looking at the jurors during the charge and did not observe anyone sleeping. Because the court had the benefit of its own observations, there was no need for further inquiry to determine whether the juror was unqualified to continue to serve (see, People v Richardson, 180 AD2d 902, 903).

We agree with defendant that several of the prosecutor’s remarks on summation were inflammatory and improperly denigrated the defense, and that an improper comment was made regarding the prospect of incarceration (see, People v Ellis, 188 AD2d 1043, 1044, lv denied 81 NY2d 970; People v Friedt, 280 App Div 836). Immediately following the summation, however, the court gave adequate curative instructions. We conclude that the prosecutor’s comments on summation were not so egregious that defendant was deprived of a fair trial and that the court’s curative instructions erased any potential prejudice to defendant (see, People v Coad, 237 AD2d 968; People v Plant, 138 AD2d 968, lv denied 71 NY2d 1031).

In view of the serious nature of these crimes and defendant’s criminal history, the sentence is not unduly harsh or severe. (Appeal from Judgment of Niagara County Court, Hannigan, J.—Robbery, 1st Degree.) Present—Denman, P. J., Hayes, Callahan, Doerr and Boehm, JJ.