People v. Holmes

139 A.D.2d 666, 526 N.Y.S.2d 1020, 1988 N.Y. App. Div. LEXIS 4404

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hayes, J.), rendered September 25, 1985, convicting her of assault in the first degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court abused its discretion in permitting the prosecutor to cross-examine her based upon information elicited during her court-ordered psychiatric examination of fitness (see, CPL 730.20 [6]). The testimony in question was elicited without objection and, thus, the contention is unpreserved for appellate review. In any event, any error in that regard does not warrant reversal as a matter of discretion in the interest of justice.

The defendant’s contention that the prosecutor’s remarks in summation denied her a fair trial is similarly without merit. Most of the comments were not objected to at trial and therefore the alleged errors have not been preserved for appellate review (CPL 470.05 [2]). In any event, those comments, as well as those which were properly preserved, were made in response to the defense counsel’s summation remarks or were fair comment on the evidence (see, People v Galloway, 54 NY2d 396; People v Love, 92 AD2d 551). Eiber, J. P., Kooper, Sullivan and Balletta, JJ., concur.