Opinion
February 7, 1994
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment and the amended judgment are affirmed.
We find no basis to conclude that the defendant was denied a fair trial due to the prosecutor's remarks in summation. Although it is generally improper for a prosecutor to refer to a defendant's "lies", in this case, the remarks were a fair response to the defense counsel's statement in summation that the defendant "doesn't lie" (see, People v. Alexandria, 126 A.D.2d 655; People v. Torres, 121 A.D.2d 663, 664; People v. Blackman, 88 A.D.2d 620, 621). Additionally, the prosecutor's remarks may be characterized as fair comment on the evidence, as the issue of credibility was crucial to the trial (see, People v. Hill, 176 A.D.2d 755, 756; People v. Glenn, 140 A.D.2d 623; People v. Oakley, 114 A.D.2d 473). The other comments were not so prejudicial as to warrant a reversal of the conviction, especially in light of the overwhelming evidence against the defendant (see, People v Crimmins, 36 N.Y.2d 230, 237; cf., People v. Galloway, 54 N.Y.2d 396).
We also conclude that the defense counsel's failure to request, on the record, that the court charge the affirmative defense to felony murder did not deprive the defendant of the effective assistance of counsel. The record demonstrates that the defendant knew that his companion was armed with a handgun and intended to commit a robbery. Therefore, the requirements of Penal Law § 125.25 (3) (c), that the defendant had no reasonable ground to believe that any other participant was armed with, inter alia, a weapon, and (d) that the defendant had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious injury, were not met (see, People v. Brown, 174 A.D.2d 750; People v. Pearson, 118 A.D.2d 737; see also, People v. DiNicolantonio, 140 A.D.2d 44, 51-61, mod 74 N.Y.2d 856). Accordingly, the defense counsel's failure to argue the affirmative defense at trial did not deprive the defendant of effective assistance of counsel (see, People v. Pagan, 130 A.D.2d 687).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Bracken, J.P., Sullivan, Santucci and Krausman, JJ., concur.