People v. Arzon

174 A.D.2d 684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1991
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered November 2, 1988, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was denied his right to a fair trial by the trial court’s failure to give a limiting instruction to the jury with regard to the People’s use of his prior crimes is not preserved for appellate review (see, CPL 470.05 [2]; People v Thomas, 50 NY2d 467; People v Yates, 160 AD2d 1036). We decline to exercise our interest of justice discretion in view of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 242; People v Yates, supra).

Contrary to the defendant’s contention, we find that he was not denied a fair trial by prosecutorial misconduct during the People’s summation. After the defendant objected to the prosecutor’s allegedly improper comment, the court gave the jury a curative instruction. Since the defendant failed to request any further ameliorative action, "it must be assumed that any defect was cured to the defense counsel’s satisfaction” (People v Shaw, 150 AD2d 626, 627, citing People v Medina, 53 NY2d 951, 953; see also, CPL 470.05 [2]). In any event, the prosecutor’s remarks were fair comment on the evidence (see, People v Pugliese, 131 AD2d 789, 790; People v Brown, 124 AD2d 667, 668). Thompson, J. P., Bracken, Eiber and Rosenblatt, JJ., concur.