Opinion
December 23, 1985
Appeal from the Supreme Court, Queens County (Pitaro, J.).
Judgment affirmed.
Defendant argues that he was deprived of a fair trial as a result of prosecutorial misconduct. We note that defendant failed to object to most of the prosecutor's comments challenged on appeal and thus has not preserved his objections thereto for appellate review (People v Nuccie, 57 N.Y.2d 818; People v Baldo, 107 A.D.2d 751). In any event, upon review of the record, we conclude that the alleged improper conduct did not deprive defendant of a fair trial.
We reject defendant's contention that remarks by the prosecutor that defendant was arrested a block from an elementary school were inflammatory. These remarks were limited in scope and were made only after defendant "opened the door" (see, People v Minor, 104 A.D.2d 830; People v Rubin, 101 A.D.2d 71). As to the claim that the prosecutor improperly relied upon facts not in evidence, the court's curative instructions obviated any prejudice arising therefrom (see, People v Baldo, supra; People v Patterson, 83 A.D.2d 691). While it is true that the prosecutor's summation may have tended to denigrate the defense, and some of the comments would have been better left unsaid, the prosecutor's summation can be evaluated fairly only in comparison to that of the defense (see, People v Blackman, 88 A.D.2d 620). Analyzed in this context, the prosecutor's summation constituted a fair response to defendant's closing argument (see, People v Gilmore, 106 A.D.2d 399; People v McCormick, 100 A.D.2d 723), and to the extent that any remarks were improper, defendant was nonetheless not deprived of a fair trial (see, People v Lowen, 100 A.D.2d 518). Mollen, P.J., Thompson, Niehoff and Eiber, JJ., concur.