Opinion
Submitted June 5, 2000
August 15, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered December 23, 1996, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Solomon Rosengarten, Brooklyn, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anne C. Feigus, and Scott J. Splittgerber of counsel), for respondent.
Before: GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
It is unnecessary to reach the defendant's contention that the court's refusal to charge manslaughter in the first degree as a lesser-included offense of intentional murder constituted error, as the defendant was acquitted of intentional murder but convicted of depraved indifference murder (see, People v. Colon, 209 A.D.2d 428). In any event, the trial court properly refused to charge manslaughter in the first degree as a lesser-included offense, as there was no reasonable view of the evidence which would allow a jury to find that the defendant committed the lesser offense but not the greater (see, CPL 300.50; People v. Van Norstrand, 85 N.Y.2d 131, 135; People v. Dennis, 208 A.D.2d 945; People v. Holmes, 196 A.D.2d 555; People v. Evans, 192 A.D.2d 671; People v. Pruitt, 190 A.D.2d 692; People v. Ochoa, 142 A.D.2d 741).
The defendant`s contention concerning allegedly improper summation comments made by the prosecutor is unpreserved for appellate review, as no objection to those comments was made in the trial court (see, CPL 470.05; People v. Mapp, 245 A.D.2d 307).
In any event, most of the comments now being challenged were a fair response to statements made in the defense counsel's summation (see, People v. Brown, 187 A.D.2d 723; People v. Cox, 161 A.D.2d 724, 725), and to the extent that any remarks were improper, the error was harmless in light of the overwhelming evidence of the defendant's guilt and the court's curative instructions to the jury (see, People v. Brown, 223 A.D.2d 597; People v. Rivera, 178 A.D.2d 620, 621).