Opinion
April 16, 1991
Appeal from the Supreme Court, New York County, Richard Failla, J.
Defendant's conviction arises out of the street robbery of Jeremy Garner on the evening of May 11, 1989, after he left a taxi and walked approximately a half-block to the Manhattan apartment building where he resided.
As no objection was made to any portion of the People's summation, the issue raised on appeal that the prosecutor's summation comments were improper and prejudicial is not preserved for appellate review (see, People v. Balls, 69 N.Y.2d 641). In any event, the prosecutor's comments in summation regarding the respective witnesses' motives to lie was an appropriate response to the defense summation, which questioned the reliability of the People's witnesses, and characterized the complaining witness as seeking "a pound of flesh" from an innocent defendant (see, People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912). Additionally, the prosecutor's summation comments characterizing defendant's testimony as tailored to fit the testimony he had heard offered by the People's witnesses, was fair comment on defendant's own repeated references to the testimony of the People's witnesses (see, People v. Fielding, 158 N.Y. 542). Finally, this court perceives no violation of trial court's Sandoval ruling by the prosecutor's reference to defendant's own testimony on his direct case regarding his experience in smoking crack cocaine and his knowledge of the different colored caps used to seal crack cocaine vials (see, People v. Fielding, supra).
Concur — Rosenberger, J.P., Kupferman, Kassal and Rubin, JJ.