Opinion
January 20, 1978
Appeal from the Erie County Court.
Present — Marsh, P.J., Moule, Dillon, Denman and Witmer, JJ.
Order unanimously reversed, motion denied and verdict reinstated and matter remitted to Erie County Court. Memorandum: The People appeal from an order of Erie County Court setting aside a jury verdict finding defendant guilty of sexual abuse in the first degree. The court based its decision on CPL 330.30 (subd 1), finding that a comment made by the prosecution during summation was so prejudicial to the defendant as to require reversal or modification of the judgment if it were raised on an appeal. The comment made by the prosecuting attorney during his summation was not objected to by defense counsel, nor was there any request made for curative instructions at the time of the charge. Such remark, therefore, even if improper, would not require reversal as a matter of law and the court erred in setting aside the verdict pursuant to CPL 330.30 (subd 1). If the prosecutor's remark was to be found improper, in the absence of objection at the time it was made, any reversal would be as a matter of discretion in the interest of justice pursuant to CPL 470.15 (subd 6, par [a]). We do not, however, find that the remark constituted error. Defendant produced three alibi witnesses who gave the testimony which interlocked with respect to the activities of defendant at the time the crime occurred. Commenting upon such alibi testimony, the prosecutor stated: "Now you've got to take every bit of his alibi testimony and believe it all or throw it out." That remark, which is the sole ground for setting aside the verdict, was not objected to nor was there any request for curative instructions. Moreover, the court's charge with respect to alibi testimony was, in all respects, proper. Although it is within our discretion to review an error in a criminal proceeding even though no objection has been raised, such discretion will be exercised only where the error is so serious that it deprives the defendant of a fair trial (CPL 470.15, subd 6, par [a]; People v Robinson, 36 N.Y.2d 224, 228). Since the comment here is not of such proportions, it is not reviewable inasmuch as no objection was raised at a time when the court could have corrected it. (People v Cerrato, 24 N.Y.2d 1, 10; People v Baker, 23 N.Y.2d 307; People v Simmons, 22 N.Y.2d 533; People v Amazon, 52 A.D.2d 1012; People v Garcia, 51 A.D.2d 329, affd 41 N.Y.2d 861).