Opinion
October 1, 1993
Appeal from the Erie County Court, Drury, J.
Present — Denman, P.J., Green, Balio, Fallon and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from his conviction of attempted murder in the second degree (two counts) and criminal possession of a weapon in the third degree. He contends that prosecutorial misconduct and an erroneous jury instruction deprived him of a fair trial. Neither contention has merit.
The trial court properly instructed the jury that evidence of flight has limited probative value as an indication of guilt (see, People v. Yazum, 13 N.Y.2d 302, 304). Defendant was not prejudiced by the prosecutor's improper references to the failure of defendant and his codefendants to come forward with evidence (see, People v. Alls, 195 A.D.2d 952). Although the prosecutor also improperly commented during summation that defendant's testimony was a fabrication and lie, those comments were not so egregious that defendant was denied a fair trial (see, People v Plant, 138 A.D.2d 968, lv denied 71 N.Y.2d 1031). Lastly, the prosecutor's use, for demonstrative purposes, of a shotgun similar in model and make to a shotgun purchased by defendant was not improper. Any variation affects the weight, not the admissibility, of such evidence (see, People v. Mariner, 147 A.D.2d 659, lv denied 74 N.Y.2d 666).