Opinion
June 19, 1990
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
Defendant and an accomplice were caught red handed in an ice cream factory in the Bronx, after removing money from the company's safe. The accomplice had a shotgun and a white bag containing $27,000. Defendant had a police radio scanner. The issue of whether or not the shotgun was loaded was sharply contested at trial, and defense counsel concentrated on this issue in his summation. Based on this, the prosecutor argued to the jury that defense counsel had conceded defendant's guilt of third degree burglary. This was an inappropriate argument (see, People v. Pauli, 130 A.D.2d 389, 393, appeal dismissed 70 N.Y.2d 911). Nevertheless, defense counsel did not object to the remark and, although he later moved for a mistrial, he did not accept the trial court's invitation to submit a proposed curative instruction. Further, he took no exception to the charge as given. In short, defense counsel made no attempt to avail himself of opportunities to neutralize the effect of the prosecutor's comment. In light of the overwhelming evidence of defendant's guilt, we affirm.
Concur — Kupferman, J.P., Sullivan, Rosenberger, Kassal and Smith, JJ.