Opinion
October 26, 1998
Appeal from the Supreme Court, Queens County (Buchter, J.).
Ordered that the judgment is affirmed.
We find no merit to the defendant's contention that he was unduly prejudiced because during the opening statement the court admonished defense counsel to state what he "intend[ed] to prove". The trial court repeatedly instructed the jury that the burden of proof remained on the People throughout the trial, and that the defendant had no burden of proof. Accordingly, the court's brief admonition cannot be deemed to have improperly shifted the burden of proof to the defendant ( see, People v. Pena, 242 A.D.2d 546; People v. Concepcion, 228 A.D.2d 204; People v. Burks, 221 A.D.2d 201).
The defendant's claim that certain comments made by the prosecutor during summation were improper is unpreserved for appellate review since the defendant either failed to properly object to the challenged remarks, or to request curative instructions ( see, CPL 470.05; People v. Heide, 84 N.Y.2d 943; People v. Walston, 248 A.D.2d 570; People v. Scotti, 220 A.D.2d 543). In any event, the challenged statements were primarily fair responses to arguments raised by the defense counsel during summation or fair comment on the evidence, and did not exceed the broad bounds of rhetorical comment allowed on closing argument ( see, People v. Galloway, 54 N.Y.2d 396; People v. Ashwal, 39 N.Y.2d 105; People v. Morris, 246 A.D.2d 559).
The defendant's remaining contention is unpreserved for appellate review ( see, People v. Agramonte, 87 N.Y.2d 765), and, in any event, is without merit under the circumstances of this case.
Ritter, J. P., Santucci, Altman and Krausman, JJ., concur.