People v. Johnson

190 A.D.2d 1001, 594 N.Y.S.2d 1006, 1993 N.Y. App. Div. LEXIS 1177

Opinion

— Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that the judgment should be reversed because of prosecutorial misconduct. Only one of the alleged incidents of prosecutorial misconduct was preserved for review and we decline to exercise our power to review the others in the interest of justice. Defense counsel did object to an improper remark by the prosecutor on summation concerning defendant’s failure to testify. The court sustained the objection and defendant did not ask for a mistrial or for curative instructions. In its charge to the jury, the court told the jury that it could not draw any inference unfavorable to defendant from the fact that he did not take the stand and testify.

We also reject defendant’s contentions that the verdict is against the weight of the evidence and that the sentence is harsh and excessive. (Appeal from Judgment of Erie County Court, La Mendola, J. — Attempted Murder, 2nd Degree.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.