People v. Newton

228 A.D.2d 321, 644 N.Y.2d 708, 644 N.Y.S.2d 708, 1996 N.Y. App. Div. LEXIS 7298

Opinion

Defendant’s failure to object during the prosecutor’s summation renders his present claim unpreserved for appellate review (People v Balls, 69 NY2d 641), and we decline to review it in the interest of justice. Were we to review it, we would find that the prosecutor’s statement that defendant’s testimony was not credible was fair comment on the inconsistencies in defendant’s testimony, and fair response to defense counsel’s summation attacking the People’s witnesses; that the prosecutor’s statement that the medical testimony was "hocus pocus” was not directed at defendant’s expert witness or otherwise at the defense presented, but at medical terminology in general; and that the prosecutor’s statement that the expert’s attempts to explain inconsistencies was "mumbo jumbo”, while better left unsaid, was not prejudicial to defendant in that it was a onetime occurrence and not a persistent theme of the summation (see, People v Grant, 162 AD2d 287, lv denied 76 NY2d 893). Concur—Murphy, P. J., Milonas, Wallach, Ross and Nardelli, JJ.