Opinion
November 9, 1995
Appeal from the Supreme Court, New York County (Howard Bell, J.).
The prosecutor's summation comments in connection with police failure to seize and voucher defendant's clothing in this case, in contrast to procedures that might be followed in the investigation of a different crime, constituted appropriate response to defense summation comments on the identical issue ( People v Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912). We reject defendant's argument that the prosecutor's comments invited speculation on matters of punishment, and we find that the court's charge adequately covered the subject.
Based on testimony concerning a drive-by identification procedure, the trial court properly referred to this procedure as a prior identification of defendant, to be considered together with all other competent evidence and factors relevant to determination of a proper identification. Defendant did not preserve by appropriate and timely objection his current additional claims of error regarding the trial court's jury charge on identification (CPL 470.05). Were we to review those claims in the interest of justice, we would find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.