Opinion
February 21, 1989
Appeal from the Supreme Court, Kings County (Cohen, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, we find that the trial court did not improvidently exercise its discretion in admitting photographs of the park where the robbery allegedly occurred (see, People v Bell, 63 N.Y.2d 796; People v Pobliner, 32 N.Y.2d 356, cert denied 416 U.S. 905; People v Carini, 139 A.D.2d 753, lv denied 72 N.Y.2d 916; People v Parsons, 112 A.D.2d 250). As the Court of Appeals has observed, "[p]hotographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant" (People v Pobliner, supra, at 370; see also, People v Corbett, 68 A.D.2d 772, affd 52 N.Y.2d 714; Richardson, Evidence § 131 [Prince 10th ed]). The photographs in question, which depict the park where the robbery occurred and other locations where the complainant observed the defendant — both before and after the robbery — were admitted to clarify the complainant's testimony and were neither inflammatory nor calculated to arouse the prejudice of the jury.
Finally, defense counsel objected to only one comment of the prosecutor during his summation. That objection was implicitly sustained by the trial court, which then provided an immediate curative instruction. Since defense counsel did not seek further curative instructions or move for a mistrial, any error in this regard has not been preserved for appellate review (CPL 470.05; People v Medina, 53 N.Y.2d 951; People v Walters, 116 A.D.2d 757, lv denied 67 N.Y.2d 891). In any event, in light of the overwhelming evidence of guilt, the defendant was not deprived of a fair trial by virtue of the prosecutor's comment (People v Ashwal, 39 N.Y.2d 105; People v Oakley, 114 A.D.2d 473, lv denied 66 N.Y.2d 921). Bracken, J.P., Lawrence, Kooper and Sullivan, JJ., concur.