Opinion
May 30, 1997
Present — Denman, P.J., Green, Doerr, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of second degree murder (two counts), first degree robbery (two counts) and second degree criminal possession of a weapon. Defendant was sentenced to concurrent indeterminate terms of imprisonment, the longest of which is 25 years to life. Defendant contends that he was deprived of a fair trial by prosecutorial misconduct during summation and that his sentence is unduly harsh or severe.
Except for a single objection to an alleged instance of vouching, defendant has failed to preserve the issue of prosecutorial misconduct for our review ( see, CPL 470.05). Were we to evaluate the prosecutor's comments as a matter of our discretion in the interest of justice ( see, CPL 470.15[a]), we would conclude that defendant was not deprived of a fair trial ( see, People v. Galloway, 54 N.Y.2d 396, 401). The prosecutor did not impugn the integrity of defense counsel or denigrate the defense, but merely exhorted the jury to focus on important aspects of the case rather than immaterial details. Further, the prosecutor commented fairly on the testimony of a defense witness. Finally, with respect to the alleged instance of vouching to which defendant objected, the prosecutor's remarks, considered in context, constitute fair comment upon the witness's testimony and fair response to defense counsel's attack on that witness.
There is no merit to defendant's challenge to the severity of the sentence. (Appeal from Judgment of Erie County Court, LaMendola, J. — Murder, 2nd Degree.)