Opinion
May 9, 1996
Appeal from the Supreme Court, New York County (Jay Gold, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's claim that the police officer's testimony was incredible, inconsistent and undermined by plausible defense testimony raises issues of credibility that were properly placed before the jury, and we find no reason to disturb its determination ( see, People v Young, 225 A.D.2d 339). Defendant's other claim that he was deprived of a fair trial by the prosecutor's summation was not preserved by a request for further relief after an objection was sustained ( People v. Balls, 69 N.Y.2d 641; People v. Tardbania, 72 N.Y.2d 852), and we decline to review it in the interest of justice. If we were to review it, we would find that while it was improper for the prosecutor to comment that, in order to believe the defense, the jury would have to be "convinced of that beyond a reasonable doubt in a way" that the arresting officer was lying, reversal is not warranted, since the comment was an isolated one that was immediately withdrawn after defendant's objection was sustained ( cf., People v. Kent, 125 A.D.2d 590; People v. Bussey, 62 A.D.2d 200), and any prejudice was obviated by the court's final instructions. We would also find that reversal is not warranted by the prosecutor's Sandoval violation, which, in view of its minor nature, the court's prompt response to it after defendant's objection, and the court's later instructions that defendant's conviction could only be used to determine his credibility, also resulted in no such substantial prejudice (see, People v Berard, 112 A.D.2d 470; People v. Velez, 223 A.D.2d 414). Finally, we would find that the prosecutor's characterization of defense testimony as "nonsense" and a "so-called story" was permissible in light of defendant's attack on the veracity of the arresting officer's testimony and within the broad bounds of rhetorical comment allowed in closing argument ( see, People v. Galloway, 54 N.Y.2d 396, 399).
Concur — Milonas, J.P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.