People v. Rosario

195 A.D.2d 577, 601 N.Y.S.2d 836, 1993 N.Y. App. Div. LEXIS 7387

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (LaCava, J.), rendered March 2, 1992, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that certain allegedly improper comments made by the prosecutor during summation deprived him of a fair trial. However, the defendant has failed to preserve this contention for appellate review inasmuch as no objections were raised to the majority of the comments in question, while those comments to which objections were registered were followed by curative instructions, subsequent to which the defendant neither asked for further curative instructions nor moved for a mistrial, thereby indicating that the court had sufficiently cured any error to his satisfaction (see, CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953; People v Geddes, 134 AD2d 279, 280-281; People v Ogelsby, 128 AD2d 556). In any event, when the remarks complained of are fairly evaluated in comparison with the summation comments of the defense counsel (see, People v Bosmond, 154 AD2d 689), we find that they either constituted a fair response to the defense counsel’s summation or were within the confines of the evidence (see, People v Ashwal, 39 NY2d 105, 109; People v Jones, 173 AD2d 853, 854).

Contrary to the defendant’s contention, we find that the court properly provided meaningful supplementary instructions to the jury’s inquiries regarding the element of intent, when considered together with the court’s overall charge on the elements of murder in the second degree (see, CPL 310.30; People v Almodovar, 62 NY2d 126, 131-132; People v Malloy, 55 NY2d 296, 301, cert denied 459 US 847). Thompson, J. P., Rosenblatt, Miller and Santucci, JJ., concur.