People v. Spruill , 110 A.D.2d 981 ( 1985 )

— Yesawich, Jr., J.

Defendant, an inmate at Elmira Correctional Facility when the crime was committed, was convicted after a trial of promoting prison contraband in the first degree, a class D felony. He received a sentence of 3 to 6 years’ imprisonment, to run consecutively with his prior sentence. On appeal, defendant’s attack is principally directed at the propriety of the prosecutor’s summation, which was unobjected to, and the severity of the sentence imposed. We affirm.

On summation, counsel can comment upon every pertinent matter of fact bearing upon the questions the jury has to decide, but must stay within the four corners of the evidence (People v Ashwal, 39 NY2d 105,109; see, People v Howard, 91 AD2d 1127, 1129). Here, the defense theory advanced was justification, and the prosecutor quite properly commented on that issue during summation. Furthermore, his remarks regarding the reliability of the testimony given by the correction officers constituted nothing more than a fair response to the challenge thereto made by the defense attorney in the course of his summation.

Nor do we find error in the sentence. It is less than the statutorily authorized maximum of seven years and properly runs consecutively with defendant’s prior sentence. In addition, there are no factors compelling leniency.

Judgment affirmed. Mahoney, P. J., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.