State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883. Additionally, the defense counsel cites the case of People v. Shaw, 150 A.D.2d 626, 541 N.Y.S.2d 495 (1989) for his contention that where a prosecutor in closing arguments inaccurately [emphasis sic] attributes to an undercover officer a more complete description of the perpetrator that the officer gave in his testimony, the court should give a curative instruction to the jury. This Court does not disagree with the propositions of law espoused in defendant's motion for new trial.
We agree with the hearing court's determination that suppression of the handgun was not required. In addition, any prejudice which may have resulted from the prosecutor's summation was cured by the court's immediate and strong curative instruction, which the jury is presumed to have followed ( see, People v. Berg, 59 N.Y.2d 294; People v. Shaw, 150 A.D.2d 626). The defendant's remaining contentions are either unpreserved for appellate review or without merit.
The defendant's contention that the prosecutor's conduct deprived him of a fair trial is without merit. The prosecutor's comments during summation challenged by the defendant on appeal were a fair response to the defense counsel's summation (see, People v. Ashwal, 39 N.Y.2d 105; People v. Shaw, 150 A.D.2d 626). The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.
Specifically, the defendant contends that the prosecutor improperly vouched for the complainant's testimony, assailed the defendant's testimony as tailored to the People's case, and improperly exceeded the court's Sandoval ruling. We have reviewed the defendant's contentions and find that the prosecutor's remarks concerning the complainant's veracity were made in fair response to the defense counsel's summation (People v Shaw, 150 A.D.2d 626; People v Roccaforte, 141 A.D.2d 775, 776; see, People v Street, 124 A.D.2d 841; People v Colon, 122 A.D.2d 150, 151; People v Torres, 121 A.D.2d 663, 664), while her remarks concerning the defendant's prior convictions did not violate the Sandoval ruling and were properly directed at the defendant's credibility (see, People v Black, 159 A.D.2d 399, 400; People v Sherman, 106 A.D.2d 416, 417). We have considered the defendant's remaining contention and find it to be without merit.
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either without merit or are unpreserved for appellate review (see, CPL 470.05; People v. Nimmons, 72 N.Y.2d 830; People v. Shaw, 150 A.D.2d 626; People v. Addison, 174 A.D.2d 627; People v. Suitte, 90 A.D.2d 80). Eiber, J.P., Rosenblatt, O'Brien and Ritter, JJ., concur.
We find no merit to the defendant's contention that the prosecutor's summation remarks deprived him of a fair trial. The objected-to remarks constituted a fair response to defense counsel's summation in which he attacked the credibility of the prosecution witnesses by suggesting that their testimony was unworthy of belief (People v. Anthony, 24 N.Y.2d 696; People v Shaw, 150 A.D.2d 626; People v. Rawlings, 144 A.D.2d 500). Furthermore, the remarks were proper comment as the issue of credibility was crucial to the trial (see, People v. Ashwal, 39 N.Y.2d 105; People v. Anthony, supra, at 703; People v. Crawford, 130 A.D.2d 678; People v. Oakley, 114 A.D.2d 473). The defendant next contends that the court's charge with regard to the credibility of the witnesses was inadequate and erroneous.
Contrary to the defendant's contention, we find that he was not denied a fair trial by prosecutorial misconduct during the People's summation. After the defendant objected to the prosecutor's allegedly improper comment, the court gave the jury a curative instruction. Since the defendant failed to request any further ameliorative action, "it must be assumed that any defect was cured to the defense counsel's satisfaction" (People v Shaw, 150 A.D.2d 626, 627, citing People v Medina, 53 N.Y.2d 951, 953; see also, CPL 470.05). In any event, the prosecutor's remarks were fair comment on the evidence (see, People v Pugliese, 131 A.D.2d 789, 790; People v Brown, 124 A.D.2d 667, 668). Thompson, J.P., Bracken, Eiber and Rosenblatt, JJ., concur.
A review of the record indicates that the comments were generally inferable from the evidence, and responsive to portions of the defense counsel's summation. Although certain comments would have been better left unsaid, the trial court's instructions to the jury eliminated any potential prejudice to the defendant (see, People v Melendez, 158 A.D.2d 720, 721; People v Shaw, 150 A.D.2d 626, 626-627). In any event, in view of the overwhelming evidence of the defendant's guilt, the challenged comments, either individually or cumulatively, do not warrant reversal of the conviction (see, People v Melendez, supra; People v Shaw, supra).
Furthermore, in light of the undercover officer's strong and unequivocal identification testimony and his ample opportunity to observe the defendant during the course of the transaction, any error in allowing the controverted testimony was harmless (see, People v Johnson, 57 N.Y.2d 969; People v Hart, 140 A.D.2d 711). With respect to the defendant's allegation that certain remarks made by the prosecutor during summation were prejudicial, we find that although some might have been better left unsaid, they were for the most part responsive to portions of defense counsel's summation, and did not deprive him of a fair trial (see, People v Shaw, 150 A.D.2d 626). The defendant's remaining contentions are either without merit or unpreserved for appellate review.
Therefore, the prosecutor was permitted to respond by suggesting that the jury consider the witnesses' demeanor and lack of motivation to lie. Viewed in light of the defense summation the prosecutor's challenged remarks were not unreasonable (see, People v. Galloway, 54 N.Y.2d 396, 399; People v. Shaw, 150 A.D.2d 626, 627). Although the prosecutor's comments concerning the failure of the defendant to call his girlfriend as an alibi witness were improper, they were the subject of prompt curative instructions with which defense counsel was apparently satisfied and which served, in any event, to dispel any prejudice arising therefrom (see, People v. Williams, 46 N.Y.2d 1070, 1071). In view of the defendant's previous involvement with the criminal justice system and the brutal nature of the robbery and murder, the sentencing Judge acted properly in imposing the challenged sentence, and we decline to exercise our discretion to modify it (see, People v. Suitte, 90 A.D.2d 80, 85-87).