Opinion
April 5, 1985
Appeal from the Monroe County Court, Mark, J.
Present — Dillon, P.J., Callahan, Denman, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's claims of prosecutorial misconduct during the summation were not preserved for review. In any event, the remarks did not deprive defendant of his right to a fair trial. Corrective instructions were given by the court in two instances and evidence of guilt was overwhelming. We comment only on the claim that the prosecutor asked the jury to draw an inference of guilt from defendant's silence during a 14-month period following his arrest, regarding his explanation for his presence at the crime scene. A police officer testified that defendant told him, when he was found seated in the victim's burglarized house, that "I live here". At trial defendant testified that he entered the house to investigate a burglary and denied that he said "I live here". The comment on summation was a fair response to defendant's claim that the police were lying and the jury could consider defendant's failure to correct his statement made at the time of his arrest on the issue of his veracity ( see, People v. Davis, 61 N.Y.2d 202, 207). Finally, in our view, the sentence was neither harsh nor excessive.