         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1535
KA 08-02118
PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GLORIA T. GONZALEZ, DEFENDANT-APPELLANT.


ABBIE GOLDBAS, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered August 22, 2007. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: On appeal from a judgment convicting her of assault
in the second degree (Penal Law § 120.05 [2]) and criminal possession
of a weapon in the third degree (§ 265.02 [1]), defendant contends
that she was denied a fair trial by three statements made by the
prosecutor during his summation. By failing to object to any of those
statements, defendant has failed to preserve her contention for our
review (see CPL 470.05 [2]; People v Carpenter, 52 AD3d 1050, 1051, lv
denied 11 NY3d 735, cert denied ___ US ___, 129 S Ct 1613; People v
McNear, 265 AD2d 810, 811-812, lv denied 94 NY2d 864). In any event,
defendant’s contention is without merit. To the extent that the
statements could be interpreted as a reference to defendant’s failure
to testify at trial, any error with respect to the statements is
harmless. County Court instructed the jury on several occasions
throughout the trial that defendant had no burden to testify or
present any evidence, and the court further explicitly instructed the
jury that it could not draw any unfavorable inference from defendant’s
failure to testify. Given those instructions and the overwhelming
evidence of defendant’s guilt, there is no reasonable possibility that
the prosecutor’s statements might have contributed to the conviction
(see generally People v Crimmins, 36 NY2d 230, 237; People v Valdez,
262 AD2d 338, 339, lv denied 93 NY2d 1028; People v Torres, 213 AD2d
503, lv denied 88 NY2d 996).

     Finally, we note that the certificate of conviction incorrectly
recites that defendant was convicted of criminal possession of a
                                 -2-                          1535
                                                         KA 08-02118

weapon in the second degree, and it must therefore be amended to
recite that defendant was convicted of criminal possession of a weapon
in the third degree under Penal Law § 265.02 (1) (see People v Saxton,
32 AD3d 1286).

     All concur except PINE, J., who is not participating.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
