Opinion
October 31, 1988
Appeal from the Supreme Court, Kings County (Hayes, J.).
Ordered that the judgment is affirmed.
The sole issue raised in this case, in which the evidence of guilt was overwhelming, is whether the defendant was denied a fair trial by certain allegedly prejudicial remarks of the prosecutor in his summation. Among the contentions raised by the defendant is that the prosecutor improperly interjected his personal opinion of the case into his summation. However, by failing to object the defendant did not preserve for appellate review any legal issue as to the propriety of those remarks (see, CPL 470.05; People v Galloway, 54 N.Y.2d 396; People v Gavins, 118 A.D.2d 582, lv denied 67 N.Y.2d 1052). In any event, neither those remarks nor the prosecutor's comments concerning the credibility of the People's witnesses deprived the defendant of a fair trial (see, People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837). The prosecutor's summation must be evaluated in comparison to that of defense counsel which, at bar, called into question the credibility of the prosecution witnesses. Therefore, the prosecutor was permitted to respond by suggesting that the jury consider the witnesses' lack of motivation to lie (see, e.g., People v Anthony, 24 N.Y.2d 696, 703-704, rearg denied sub nom. People v Batten, 25 N.Y.2d 647; People v Koleskor, 131 A.D.2d 879, 880, lv denied 70 N.Y.2d 801; People v Torres, 121 A.D.2d 663, 664). We further note that the prosecutor's comments concerning credibility, to the extent they were improper, were the subject of curative instructions with which defense counsel was apparently satisfied (see, People v Williams, 46 N.Y.2d 1070, 1071; People v Breland, 109 A.D.2d 890) and which served, in any event, to dispel any prejudice arising therefrom.
Lastly, we find the jury's verdict acquitting the defendant of the charge of attempted escape a clear indication that the jury was not unduly influenced by the prosecutor's improper vouching for the credibility of the prosecution's police witness who testified on that issue (see, People v Martin, 112 A.D.2d 387). Mangano, J.P., Thompson, Brown and Sullivan, JJ., concur.