Opinion
1996-07094
Argued February 1, 2002.
February 25, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered July 23, 1996, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (Lorraine Maddalo of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschutz, Nicoletta J. Caferri, and Kim Petersen of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., CORNELIUS J. O'BRIEN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, JJ.
ORDERED that the judgment is affirmed.
The defendant's contentions are largely unpreserved for appellate review. He either failed to object or raised only general objections to the allegedly improper summation comments (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245), and belatedly requested, inter alia, a mistrial and curative instructions after summations were complete (see, People v. Bryant, 163 A.D.2d 406; People v. Morris, 148 A.D.2d 552).
In any event, the prosecutor's comment that the arrest photograph showed "one day's growth [of the defendant's mustache]", and her explanation why the pre-recorded money and crack cocaine were not recovered were fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105; People v. Holguin, 284 A.D.2d 343; People v. Card, 248 A.D.2d 547). Since the prosecutor did not state her personal belief regarding the truthfulness of the People's witnesses, it cannot be said that she improperly vouched for their credibility (see, People v. Bailey, 58 N.Y.2d 272; cf., People v. Walters, 251 A.D.2d 433). The prosecutor's summation was a fair response to the defendant's summation and any alleged errors were sufficiently addressed by the Supreme Court's instruction to the jury (see, People v. Brown, 272 A.D.2d 338; People v. Ferrer, 245 A.D.2d 569; People v. Glod, 234 A.D.2d 384; People v. Sumpter, 192 A.D.2d 628).
The defendant's remaining contention is without merit.
PRUDENTI, P.J., O'BRIEN, FRIEDMANN and McGINITY, JJ., concur.