Opinion
October 2, 1998
Appeal from the Supreme Court, Erie County, Tills, J. — Assault, 2nd Degree.
Present — Denman, P. J., Pine, Hayes, Pigott, Jr., and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her after a jury trial of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). We reject the contentions of defendant that Supreme Court erred in refusing to recuse itself ( see, People v. Bennett, 238 A.D.2d 898, 899, lv denied 90 N.Y.2d 890, cert denied — US — 118 S Ct 2302) and in summarily denying her motion to set aside the verdict ( see, CPL 330.30; 330.40). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to preserve for our review her contention that she was deprived of her right to an impartial jury because the court improperly precluded defense counsel from questioning prospective jurors with respect to possible bias concerning police witnesses. Only codefendant's attorney attempted to ask questions concerning that issue, and defendant may not rely on an objection by codefendant's attorney during the joint trial to preserve an issue ( see, People v. Buckley, 75 N.Y.2d 843, 846; People v. Klavoon, 207 A.D.2d 979, 980, lv denied 84 N.Y.2d 908). In any event, we note that we rejected the same contention made by codefendant ( see, People v. Bennett, supra, at 898-899). Finally, defendant contends that she was deprived of a fair trial by prosecutorial misconduct on cross-examination of defendant and on summation. Defendant did not object to the comments of the prosecutor on summation or to some of the prosecutor's cross-examination of defendant, thereby failing to preserve for our review those alleged instances of prosecutorial misconduct ( see, CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). In any event, although some of the conduct of the prosecutor was improper, it was not so egregious that it deprived defendant of a fair trial ( see, People v. Church, 244 A.D.2d 953).