Opinion
September 29, 1995
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Green, J.P., Lawton, Wesley, Davis and Boehm, JJ. (Filed Aug. 29, 1995.)
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that the prosecutor shifted the burden of proof during his summation. The prosecutor's comments were a proper response to defense counsel's summation (see, People v Maisonet, 172 A.D.2d 274, lv denied 78 N.Y.2d 969; People v Peralta, 172 A.D.2d 155, lv denied 78 N.Y.2d 925). Any impropriety in the prosecutor's cross-examination of defendant was not so egregious that it deprived defendant of a fair trial (see, People v Toumbis, 204 A.D.2d 1026; People v Dawkins, 203 A.D.2d 957, 958, lv denied 84 N.Y.2d 824).
The trial court properly declined to grant a mistrial based upon a communication between two jurors and the employer of one of those jurors. Given the nature of the information discussed, there is no likelihood that defendant was prejudiced (cf., People v Brown, 48 N.Y.2d 388, 394; People v Magnano, 175 A.D.2d 639, lv denied 79 N.Y.2d 860).
The testimony of the victim's mother regarding the victim's prompt complaint did not constitute bolstering (see, People v McDaniel, 81 N.Y.2d 10, 16-17; People v Guerra, 174 A.D.2d 502, lv denied 78 N.Y.2d 1076). The other alleged instances of bolstering are not preserved for our review (see, CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). We also decline to review the contention, raised for the first time on appeal, that the trial court exhibited partiality in its rulings and comments to defense counsel (see, People v. Charleston, 56 N.Y.2d 886, 887). The sentence imposed is not unduly harsh or severe.