Opinion
Submitted September 23, 1999
November 1, 1999
M. Sue Wycoff, New York, N.Y. (Elizabeth B. Emmons of counsel), for appellant.
William L. Murphy, District Attorney, Staten Island, N.Y. (Karen F. McGee and Michael K. Degree of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Leone, J.), rendered December 5, 1996, convicting him of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that improper comments made by the prosecutor during summation constituted reversible error is unpreserved for appellate review inasmuch as no objections to those comments were made during his summation (see, CPL 470.05 [2]; People v. Goodman, 190 A.D.2d 862 ;People v. Ray, 155 A.D.2d 625 ). In any event, the defendant's argument is without merit as the prosecutor's comments were, for the most part, fair response to the defense summation, which extensively attacked the complainant's credibility (see, People v. Galloway, 54 N.Y.2d 396 ;People v. Stith, 215 A.D.2d 789 ; People v. Lee, 209 A.D.2d 723 ), and did not unduly prejudice the defendant (see, People v. Stith, supra;People v. Robinson, 208 A.D.2d 961 ; People v. Trail, 172 A.D.2d 320 ).
The defendant's contention that he is entitled to a new trial because of the trial court's references in its charge to the defendant's "guilt or innocence" is not preserved for appellate review (see, People v. Henderson, 259 A.D.2d 495; [2d Dept., Mar. 1, 1999]; People v. Williams, 226 A.D.2d 406 ; People v. Cahill, 220 A.D.2d 608 ). In any event, the defendant's argument is without merit. The trial court properly instructed the jury in detail that the People had the burden of proving each and every element of the crimes charged beyond a reasonable doubt, that the defendant is the person who committed the crime beyond a reasonable doubt, and that the presumption of innocence only ceases if and when the jury determines that the defendant's guilt was established beyond a reasonable doubt (see, People v. Cahill, supra, at 609; People v. Actie, 215 A.D.2d 570 ; People v. Medina, 178 A.D.2d 177 ). Although some of the court's comments would have been better left unsaid, considered as a whole, the charge conveyed the proper standards (see, People v. Henderson, supra; People v. Coleman, 70 N.Y.2d 817 ;People v. Canty, 60 N.Y.2d 830 ; People v. Custodio, 243 A.D.2d 576 ; People v. Cahill, supra; People v. Actie, supra).
BRACKEN, J.P., FRIEDMANN, GOLDSTEIN, and SMITH, JJ., concur.