Opinion
October 22, 1991
Appeal from the Supreme Court, New York County (Max Sayah, J.).
Defendant's conviction arises out of his arrest for taking personal property from the coat pocket of a 77 year old victim on a Manhattan street. Evidence adduced at trial was that the crime was observed by a police officer on plainclothes duty, and that defendant was arrested after his struggle with that officer was observed by two other officers.
There was no abuse of discretion by the trial court in denying defendant's application for preclusion of the testimony of two police officers as merely cumulative on the issue of defendant's flight from the scene. The record indicates that evidence provided by the two officers, although entwined with the flight issue, was admissible as relevant and tending to establish the facts leading to defendant's arrest (see, e.g., People v. Yazum, 13 N.Y.2d 302).
As defendant neither requested a specific charge regarding evidence of flight, nor objected that such a charge was not given, he has failed to preserve the issue for appellate review as a matter of law (CPL 470.05). In this connection, it is noted that defense counsel reasonably did not request such a charge in order to avoid the court calling to the jury's attention the "consciousness of guilt" theory inherent therein, as a part of trial strategy apparently calculated to direct the jury's attention instead to suggested improper police conduct (see, e.g., People v. Lester, 163 A.D.2d 201, lv denied 76 N.Y.2d 988).
There is no merit to defendant's claim of prosecutorial misconduct in summation. Initially, it is noted that the defense counsel's objections to certain comments of the prosecutor were sustained, and immediate curative instructions were given to the jury. It is presumed that the jury followed the trial court's instructions in this regard (see, e.g., People v. Rodriguez, 103 A.D.2d 121). Otherwise, the prosecutor's summation constituted appropriate response to the defense summation attacking credibility of the People's witnesses (see, People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912) and fair comment on the evidence, presented within the broad bounds of rhetorical comment permissible in closing argument (see, People v. Galloway, 54 N.Y.2d 396).
Concur — Carro, J.P., Rosenberger, Kupferman, Ross and Rubin, JJ.