Opinion
December 18, 1989
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is affirmed.
According to the trial testimony, on the evening of October 12, 1986, after the defendant had refused to sell cocaine on credit to the victim, he drew a gun and shot the victim in the head at close range, killing her. On appeal, the defendant contends that the prosecutor denied him his right to a fair trial in his improper direct examination of two of the People's witnesses, as well as during summation. In addition, he argues that his sentence was excessive. The defendant's contentions are without merit.
We note that none of the defendant's claims of prosecutorial misconduct are preserved for appellate review, either because he failed to object, or because when his objections were sustained he neither asked for further curative instructions, nor did he move for a mistrial (see, CPL 470.05).
The prosecutor's use of witness Gutierrez's Grand Jury testimony did not constitute impermissible bolstering, but rather was an appropriate rehabilitation of the People's witness, whom the defendant had accused of recent fabrication during cross-examination, by means of a prior consistent statement made at a time when the witness had no motive to lie (see, People v Davis, 44 N.Y.2d 269; People v Burgin, 40 N.Y.2d 953).
The prosecutor's remarks on summation, most of which were not objected to, constituted fair comment on the evidence, and/or an appropriate response to defense counsel's arguments on summation (see, People v Ashwal, 39 N.Y.2d 105; People v Pugliese, 131 A.D.2d 789).
Finally, we conclude that the defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80). Sullivan, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.