Opinion
November 15, 1988
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., Callahan, Denman, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction was based on legally sufficient evidence and was not against the weight of the evidence. We find that the credible evidence provides a valid line of reasoning to support the jury verdict and does not reasonably support a different finding (People v. Bleakley, 69 N.Y.2d 490, 495). Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct. No objection having been raised to a number of these errors, they have not been preserved for our review (People v Dawson, 50 N.Y.2d 311, 324; People v. Rubin, 101 A.D.2d 71, 78). Where objections were interposed they were sustained and adequate curative instructions were given, thus dissipating any prejudice (People v. Ashwal, 39 N.Y.2d 105, 111; People v. Broady, 5 N.Y.2d 500, cert denied 361 U.S. 8). Additionally, many of the alleged improprieties were within the wide rhetorical bounds granted to the prosecutor to comment upon the evidence or in response to defense counsel's summation (People v. Tardbania, 130 A.D.2d 954, affd 72 N.Y.2d 852).
It is further contended that reversal is necessitated by errors in the court's charge. Despite the instructions of this court and other courts to the contrary, the trial court used the inappropriate phrases "reasonable degree of certainty" (People v Hewlett, 133 A.D.2d 417; People v. Mitchell, 124 A.D.2d 977; People v. La Rosa, 112 A.D.2d 954; People v. Morris, 100 A.D.2d 600 ) and "good sound substantial reason" (People v. La Rosa, supra; People v. Balian, 49 A.D.2d 94) in its charge of reasonable doubt. However, defense counsel failed to object to these alleged errors; thus, they have not been preserved for our review (CPL 470.05; People v. Thomas, 50 N.Y.2d 467). In any event, when viewed as a whole, the court's charge properly conveyed to the jury the concept of reasonable doubt.