Opinion
July 15, 1994
Appeal from the Ontario County Court, Harvey, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: During voir dire and after the direct examination of a prosecution witness, defendant moved for a mistrial because a prospective juror spontaneously commented that "he [defendant] use [sic] to beat up a girl". County Court questioned the prospective juror about that statement and her ability to be impartial before deciding whether to grant a mistrial. Following the direct examination of a prosecution witness and upon defendant's request, the court gave a curative instruction and defense counsel expressed satisfaction with that instruction. The record does not reveal whether that prospective juror or any of the other prospective jurors present when the statement was made actually served on the jury. Under the circumstances, defendant failed to demonstrate that he was prejudiced by the comment and, in light of defendant's satisfaction with the curative instruction, the court did not abuse its discretion in refusing to grant a mistrial (see, People v. Mosley, 170 A.D.2d 990, lv denied 77 N.Y.2d 964; People v. Horn, 156 A.D.2d 930, lv denied 75 N.Y.2d 919).
Prosecutorial misconduct did not deprive defendant of a fair trial. The prosecutor, on cross-examination of defendant, engaged in misconduct by improperly questioning defendant whether prosecution witnesses were lying (see, People v. Herman, 187 A.D.2d 1027, 1028) and insinuating that defendant was lying because he looked away from the prosecutor while testifying (see, People v. Grice, 100 A.D.2d 419, 421). The prosecutor, during summation, improperly vouched for the credibility of prosecution witnesses (see, People v. Dunn, 158 A.D.2d 941, 942, lv denied 76 N.Y.2d 734) and improperly commented that defendant was as guilty as the length of the trial, that defendant's chain of custody challenge was a "red herring", that defendant's claim of inability to speak English was a ruse and that defendant was lying (see, People v Bailey, 58 N.Y.2d 272, 277; People v. Ellis, 188 A.D.2d 1043, 1044, lv denied 81 N.Y.2d 970; People v. Dunn, supra). We note, however, that comments concerning the credibility of witnesses constituted fair response to the defense summation or permissible rhetorical comment (see, People v. Galloway, 54 N.Y.2d 396, 399). Further, the improprieties were not so pervasive or egregious as to deprive defendant of a fair trial (cf., People v. Mott, 94 A.D.2d 415, 418-419).
There is no merit to defendant's contentions that the court gave an improper jury instruction on the agency defense, that the verdict is contrary to the weight of evidence or that the sentence imposed upon defendant is harsh or excessive.