Opinion
May 31, 1990
Appeal from the Supreme Court, Bronx County (Dominic R. Massaro, J.).
Defendant contends that the court improperly admitted into evidence certain irrelevant testimony regarding the distance from his residence to the site of the crime. The contention is without merit as the evidence was an attempt to rebut the defense theory that the testimony of the police officers was "canned". Further, any possible error was harmless in light of the overwhelming evidence of guilt (People v. Crimmins, 36 N.Y.2d 230, 237).
Defendant's challenge to portions of the prosecutor's summation has been waived for failure to object, thus denying the court an opportunity to strike the remarks or give curative instructions (CPL 470.05; People v. Dordal, 55 N.Y.2d 954). In any event, were we to reach these contentions, we would nevertheless affirm. The comments were in direct response to the attacks on the credibility of the police witnesses (People v. Galloway, 54 N.Y.2d 396). To the extent the remarks were improper, again any error was harmless in light of the overwhelming evidence of guilt (People v. Crimmins, supra). Further, the court's charge, which, inter alia, instructed the jurors that their recollection, understanding and evaluation of counsel was controlling, was sufficient to dispel the effect of any alleged misstatement (People v. Comer, 73 N.Y.2d 955, 956-957).
Defendant also challenges the court's charge, contending that it emphasized, beyond the neutral language of CPL 300.10 (2), his decision not to testify. However, as no objection was made, this contention was also not preserved as a matter of law (People v Lara, 75 N.Y.2d 836). Were we to consider the charge, we would nevertheless affirm. The charge as given, when taken as a whole, correctly conveyed the appropriate standard the jury was to apply, while affording defendant all his constitutional protections (People v. Adams, 69 N.Y.2d 805).
Finally, defendant fails to show that the court abused its discretion in sentencing (People v. Junco, 43 A.D.2d 266, 268, affd 35 N.Y.2d 419, cert denied 421 U.S. 951).
Concur — Murphy, P.J., Rosenberger, Asch, Smith and Rubin, JJ.