Opinion
November 13, 2000.
Appeal from Judgment of Monroe County Court, Smith, J. — Murder, 2nd Degree.
PRESENT: HAYES, J. P., SCUDDER, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
The contention of defendant that the prosecutor improperly commented on his failure to testify, thereby depriving him of a fair trial, has not been preserved for our review ( see, CPL 470.05). After County Court's curative instruction, defense counsel neither objected further nor requested a mistrial. Thus, the curative instruction "must be deemed to have corrected the error to the defendant's satisfaction" ( People v. Heide, 84 N.Y.2d 943, 944; see, People v. Webb, 236 A.D.2d 872, lv denied 90 N.Y.2d 865; People v. Bruce, 216 A.D.2d 913, 914, lv denied 86 N.Y.2d 872). In any event, the prosecutor's comment "was `not of such character as would naturally and reasonably be interpreted by the jury as adverse comment on defendant's failure to take the stand'" ( People v. Tascarella, 227 A.D.2d 888, lv denied 89 N.Y.2d 867, quoting People v. Burke, 72 N.Y.2d 833, 836, rearg denied 72 N.Y.2d 953).