Opinion
May 20, 1997
Appeal from the Supreme Court, Bronx County (Nicholas Iacovetta, J.).
Since defendant expressly agreed to the remedy fashioned by the court, and implicitly abandoned any prior objections, he has not preserved for appellate review his argument that the prosecutor's late disclosure of a Rosario document deprived him of a fair trial ( see, People v. Carraquillo, 202 A.D.2d 253, 254, lv denied 84 N.Y.2d 823), and we decline to reach the issue in the interest of justice. Were we to review it, we would find that defendant has not demonstrated that he was substantially prejudiced by the prosecutor's inadvertent late production of the document ( see, People v. Martinez, 71 N.Y.2d 937, 940; compare, People v Thompson, 71 N.Y.2d 918).
The challenged portions of the prosecutor's summation were fair comments upon the evidence, did not exceed the broad bounds of permissible rhetoric and were responsive to arguments raised by defendant's summation ( see, People v. D'Alessandro, r 184 A.D.2d 114, 119, lv denied 81 N.Y.2d 884).
Defendant's claim that the court should have instructed the jury to cease deliberations until a response to their note could be provided is unpreserved for review, since defendant waived any objection ( see, People v. Frye, 192 A.D.2d 412, lv denied 82 N.Y.2d 894), and is, in any event, without merit ( see, People v Wilson, 202 A.D.2d 353, 354, lv denied 83 N.Y.2d 973; People v Barbella, 154 A.D.2d 687, lv denied 75 N.Y.2d 810, cert denied 495 U.S. 908).
Concur — Rosenberger, J.P., Nardelli, Rubin and Williams, JJ.