![]() While it is evident that certain of the prosecutor's remarks might have been better left unsaid, they do not-singularly or cumulatively-reflect a " 'flagrant and pervasive pattern of prosecutorial misconduct' " requiring reversal ( People v Jones, 283 AD2d 665, 668, lv denied 96 NY2d 903, quoting People v Demming, 116 AD2d 886, 887, lv denied 67 NY2d 941 see People v McCombs, 18 AD3d 888, 890 People v Roberts, 12 AD3d 835, 837, lv denied 4 NY3d 802 People v Trinidad, 5 AD3d 231, 231, lv denied 2 NY3d 808 People v Skaar, 225 AD2d 824, 826, lv denied 88 NY2d 854 ). In assessing that claim, we consider " 'the severity and frequency of the conduct, whether the trial court took appropriate action to dilute the effect of the conduct and whether, from a review of the evidence, it can be said that the result would have been the same absent such conduct' " ( People v Layton, 16 AD3d 978, 979, quoting People v Tarantola, 178 AD2d 768, 770, lv denied 79 NY2d 954 ). On appeal, defendant contends that prosecutorial misconduct impinged on his due process right to a fair trial by the People's repeated attempts to shift or mitigate the burden of proof and infer that he was prone to dealing illicit drugs. The jury convicted defendant of the crime charged and Supreme Court sentenced him to a prison term of four years to life. At trial, defendant admitted to selling drugs to the confidential informant, but maintained that the substance sold was marihuana, not cocaine. Once the confidential informant returned to the DEA office, he relinquished the cocaine and was again searched for contraband.Īs a result of the controlled buy, defendant was charged with one count of criminal sale of a controlled substance in the second degree. He then proceeded to defendant's residence under DEA surveillance, and exchanged the $1,200 for approximately 20 grams of cocaine. The confidential informant was searched for contraband, fitted with a microphone and transmitter and given $1,200 in prerecorded buy money. ![]() In preparation for the buy, the DEA recorded a telephone conversation between the confidential informant and defendant wherein the two agreed to meet at defendant's residence in the City of Albany. In July 2003, the Drug Enforcement Agency (hereinafter DEA) set up a controlled buy between defendant and a confidential informant. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered Apin Albany County, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the second degree. ![]() The People of the State of New York, Respondent, v Jason Kirker, Appellant. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.Īs corrected through Wednesday, October 12, 2005 People v Kirker (2005 NY Slip Op 06243) People v Kirker
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