Opinion
August 19, 1991
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment to 12 1/2 years to life imprisonment; as so modified, the judgment is affirmed.
Contrary to the defendant's contentions, we find that he was not deprived of a fair trial by the prosecutor's statements during summation. The great majority of the prosecutor's comments were not objected to, and where the objections were made and sustained, the defendant did not request curative instructions or move for a mistrial based on the prosecutor's remarks. Hence, any error of law with respect thereto is unpreserved for appellate review (see, People v Tardbania, 72 N.Y.2d 852, 853; People v Medina, 53 N.Y.2d 951, 953). In any event, the prosecutor's statements were proper comment on the issues of fact the jury had to decide and a proper response to the arguments raised by defense in summation (see, Penal Law § 265.03; People v Galloway, 54 N.Y.2d 396; People v Ashwal, 39 N.Y.2d 105).
The defendant's contention that the court should have instructed the jury that the two incidents were separate and distinct, and that evidence of guilt as to one of the incidents could not be considered as evidence of guilt as to the other incident, is unpreserved for appellate review since the defendant never requested such a charge at trial (see, People v Thomas, 50 N.Y.2d 467, 471). In any event, any such charge would have been improper because the counts of the indictment were not severable (see, CPL 200.20 [a], [b]; People v Bongarzone, 69 N.Y.2d 892, 895; People v Lane, 56 N.Y.2d 1; cf., People v Harris, 51 A.D.2d 937).
Finally, the sentence imposed was excessive to the extent indicated. Eiber, J.P., Rosenblatt, Miller and Ritter, JJ., concur.