Opinion
June 16, 1992
Appeal from the Supreme Court, New York County (Rena K. Uviller, J.).
The victim was fatally stabbed by the defendant with a pen in a store following an altercation in which defendant complained that the victim was speaking too loudly.
Defendant's claim that the prosecutor improperly used her pretrial silence to impeach her trial testimony is unpreserved for appellate review and we decline to reach it in the interest of justice (People v. Fleming, 70 N.Y.2d 947). Were we to consider this claim, we would find it to be without merit. The prosecutor asked defendant if she had contacted the police or called for assistance immediately after the stabbing in an effort to refute defendant's testimony that she was concerned for the welfare of the victim after she had accidentally stabbed him (see, People v De George, 73 N.Y.2d 614, 621). Moreover, it was actions, and not speech that were questioned (People v. Johnson, 166 A.D.2d 189, 190, lv denied 77 N.Y.2d 962).
Defendant also contends that the prosecutor's comments during summation were so prejudicial as to deprive her of a fair trial. Only one of the comments was objected to in the form of an unelaborated general objection which was insufficient to preserve defendant's claims for appellate review. (CPL 470.05; People v. Fleming, supra.) In any event, a review of the record reveals that the summation was a fair response to comments made by defense counsel in his summation. Accordingly, the comments did not exceed the broad bounds of rhetorical comment permissible in closing argument (People v. Galloway, 54 N.Y.2d 396).
Concur — Rosenberger, J.P., Ellerin, Kupferman, Ross and Asch, JJ.