Opinion
July 12, 1996
Appeal from the Ontario County Court, Harvey, J.
Present — Denman, P.J., Pine, Fallon, Callahan and Balio, JJ.
Judgment unanimously affirmed. Memorandum: The contention of defendant that he was deprived of a fair trial by prosecutorial misconduct is not preserved for our review ( see, CPL 470.05). Were we to exercise our power to review the issue as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]), we would conclude that reversal is not required because the alleged improprieties were not so pervasive or egregious as to deprive defendant of a fair trial ( cf., People v. Mott, 94 A.D.2d 415, 418-419).
We further conclude that the evidence is sufficient to sustain the conviction of burglary in the second degree, and the verdict is not against the weight of the evidence ( see, People v Bleakley, 69 N.Y.2d 490, 495).
Finally, we decline to modify the sentence as a matter of discretion in the interest of justice ( see, CPL 470.15 [b]).