Opinion
June 11, 1996
Appeal from the Supreme Court, Bronx County (Efrain Alvarado, J.).
We find that any prejudice resulting from the prosecutor's erroneous comments in her opening statements concerning the import of an indictment, and in the court's refusal to give an immediate curative instruction does not mandate reversal in light of the court's instructions during jury selection and in its final charge ( People v. Sanders, 213 A.D.2d 432, lv denied 85 N.Y.2d 980; People v. James, 197 A.D.2d 429, lv denied 83 N.Y.2d 806). We also find that, by his acquiescence in the court's election to defer the curative instruction until its final charge, defendant failed to preserve his present argument for appellate review. Although defendant did move for a mistrial in connection with an improper summation comment that shifted the burden of proof, he did not object to the adequacy of the relief proposed by the court or challenge the adequacy of the final instruction in this regard, and thus similarly has failed to preserve this claim ( People v. Johnson, 210 A.D.2d 174, lv denied 85 N.Y.2d 939). Review in the interest of justice is not warranted.
Concur — Milonas, J.P., Rosenberger, Wallach, Ross and Tom, JJ.