Opinion
May 31, 1991
Appeal from the Supreme Court, Kings County (Beldock, J.).
Ordered that the judgment is affirmed.
The defendant contends that the court erred in misclassifying, for procedural purposes, a statement made by him to the police as inculpatory rather than exculpatory, and that therefore, by instructing the jury that the People have the burden of proving the voluntariness of his statement beyond a reasonable doubt, the court improperly shifted the burden of proof to the defendant. We note initially that the court's charge did not classify, characterize, or label the defendant's explanation as "inculpatory" or as anything other than a "statement." In any event, we find the defendant's statement to be inculpatory (see, People v Sanchez, 92 A.D.2d 595, 596, affd 61 N.Y.2d 1022). We also note that before trial the defendant moved to suppress the statement as involuntary (see, CPL 60.45, 710.20 Crim. Proc. [3]). Because the statement was an admission, the court properly assigned the burden of proof to the People (see, 1 CJI[NY] 11.01).
We agree with the People's acknowledgement that the trial court, in making reference in its charge to the "truthfulness" of the defendant's statement, may have used language that, when taken out of context, was somewhat ambiguous. However, the charge, when read as a whole, adequately assigned the various burdens of proof to the People. Moreover, in light of the overwhelming evidence of guilt, we find that any imperfection in the court's charge is harmless (see, People v Crimmins, 36 N.Y.2d 230).
We conclude that the prosecutor's remarks on summation, now challenged by the defendant, do not warrant reversal. The prosecutor's remarks, for the most part, either constituted a fair response to the defendant's summation or were within the confines of the evidence (see, People v Ashwal, 39 N.Y.2d 105; People v Sykes, 151 A.D.2d 523, 524; People v Geddes, 134 A.D.2d 279, 280; People v Moore, 125 A.D.2d 501, 502; People v Boute, 111 A.D.2d 398). In the limited instances where the prosecutor's comments arguably constituted vouching for witnesses, we find that the court's immediate admonitions and curative instructions along with the court's general instructions at the outset of the trial and in its charge to the jury, served to eliminate any possibility of prejudice to the defendant (see, People v Geddes, supra; People v Ogelsby, 128 A.D.2d 556; People v Saylor, 115 A.D.2d 671; People v Boute, supra). Brown, J.P., Kunzeman, Harwood and Rosenblatt, JJ., concur.