People v. Smallwood

216 A.D.2d 256, 628 N.Y.S.2d 1013, 1995 N.Y. App. Div. LEXIS 7108

Opinion

Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered April 19, 1993, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3x/2 to 7 years, unanimously affirmed.

Defendant’s claim that the prosecutor’s summation deprived him of a fair trial is unpreserved for appellate review as a matter of law, for failure either to object to the comments challenged on appeal or to request further relief after the court issued curative instructions (People v Tardbania, 72 NY2d 852; People v D’Alessandro, 184 AD2d 114, 118, lv denied 81 NY2d 884), and we decline to review the issue in the interest of justice. If we were to do so, we would find that the comments in question were appropriate response to the defense summation (see, People v Liang, 208 AD2d 401).

In view of defendant’s criminal record, and the court’s decision not to sentence him as a discretionary violent felony offender, the sentence imposed was a proper exercise of discretion (see, People v Farrar, 52 NY2d 302, 305). Concur— Rosenberger, J. P., Kupferman, Asch, Nardelli and Mazzarelli, JJ.