Opinion
February 25, 1992
Appeal from the Supreme Court, Bronx County (Joseph A. Mazur, J.).
Defendant's argument that he was in various ways deprived of a fair trial by the prosecutor's summation is unpreserved, and we decline to review it. If we were to review it in the interest of justice, we would find that the challenged comments do not warrant a new trial. The prosecutor's summation did not exceed the bounds of fair comment (People v. Galloway, 54 N.Y.2d 396; People v. Stokes, 165 A.D.2d 763, lv denied 76 N.Y.2d 991); he did not vouch for the credibility of the police witness; and his arguments on the absence of testimony by one officer were responsive to counsel's claims in summation. While argument noting that the defendant has listened to the prosecution witnesses and thereby suggesting that he has tailored his own testimony in light thereof has been criticized (People v. Rosa, 108 A.D.2d 531, 538), in the circumstances here presented, including defendant's waiver of any opening, the argument that defendant's trial testimony was newly fabricated to contradict the police testimony does not warrant a reversal. Finally, there is no merit to defendant's unpreserved argument that the court did not respond meaningfully to a request by the jury to hear testimony (see, People v. Agosto, 73 N.Y.2d 963; People v Malloy, 55 N.Y.2d 296, 302).
Concur — Murphy, P.J., Wallach, Kupferman, Asch and Smith, JJ.