Opinion
November 13, 2000.
Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Assault, 1st Degree.
PRESENT: PINE, J. P., WISNER, SCUDDER AND KEHOE, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant contends that he was denied a fair trial when the prosecutor improperly commented during summation on defendant's failure to testify. Defendant objected to the comment and moved for a mistrial. Supreme Court sustained the objection and immediately instructed the jury to disregard the prosecutor's comment, and there was no further objection by defendant. During its charge, the court further instructed the jury at defendant's request that no unfavorable inference may be drawn from defendant's failure to testify. Contrary to defendant's contention, the court's curative instructions were sufficient to correct the error. "It is presumed that the jury followed the trial court's curative instructions * * * and as defendant raised no further objection, he has waived appellate review" ( People v. Brown, 174 A.D.2d 370, 371, lv denied 78 N.Y.2d 1009; see, People v. Heide, 84 N.Y.2d 943, 944; People v. Williams, 46 N.Y.2d 1070, 1071; People v. Reid, 140 A.D.2d 639, 640-641, lv denied 72 N.Y.2d 961).