Opinion
December 7, 1993
Appeal from the Supreme Court, Bronx County (Fred Eggert, J.).
The presence of neither defendant nor counsel was required at sidebar discussions where the trial court posed questions to unsworn prospective jurors relating solely to the qualifications, in a general sense, of those individuals to sit as jurors, matters which are solely for the court (People v Sloan, 79 N.Y.2d 386, 390).
Defendant failed to preserve his claim of Sandoval error by appropriate and timely objection (People v Johnson, 169 A.D.2d 553, lv denied 78 N.Y.2d 968). In any event, the trial court appropriately exercised its discretion in balancing the probative nature against the prejudicial nature of defendant's numerous prior convictions, by limiting cross-examination of defendant, in the event he testified, to the fact and nature of one robbery conviction for which defendant was sentenced to a term of 7 1/2 to 15 years, and the fact only of a concurrent felony conviction (People v Sandoval, 34 N.Y.2d 371).
Defendant's claim that the prosecutor's cross-examination of a witness for defendant who had been arrested with defendant was intended not to impeach that witness' testimony, but to improperly utilize defendant's post-arrest silence, is both unpreserved by appropriate and timely objection (CPL 470.05) and unsupported by the record. It is unlikely that the jury considered the impeachment evidence as improper comment on defendant's post-arrest silence, and if such evidence peripherally touched upon the issue, any prejudice to defendant was rendered harmless in light of the overwhelming evidence of defendant's guilt of the crime charged (People v Crimmins, 36 N.Y.2d 230).
Defendant failed to enter timely objection to any of the comments of the prosecutor during summation, and the trial court appropriately denied defendant's belated motion for a mistrial based upon certain of the prosecutor's summation comments. While the prosecutor's comments suggesting that the jurors consider themselves "guardians of the community" were improper (see, People v Miller, 149 A.D.2d 439), as was the prosecutor's suggestion that the jurors "Do the right thing" (People v Jorge, 171 A.D.2d 498), the balance of the prosecutor's summation constituted appropriate response to the defense summation (People v Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912), and fair comment on the evidence presented within the broad bounds of rhetorical comment permissible in closing argument (People v Galloway, 54 N.Y.2d 396). Thus, as a whole the effects of the prosecutor's remarks did not deprive defendant of a fair trial, and in light of the overwhelming evidence of defendant's guilt of the crime charged, any error is rendered harmless (People v Crimmins, supra).
We have considered defendant's additional claims of error and find they do not warrant any modification of the judgment appealed.
Concur — Ellerin, J.P., Wallach, Kupferman and Rubin, JJ.