Opinion
Argued March 17, 2000.
May 1, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered February 20, 1997, convicting him of attempted robbery in the third degree, upon a jury verdict, and imposing sentence.
Simpson Thacher Bartlett, New York, N.Y. (Sharon L. Volckhausen of counsel), and M. Sue Wycoff, New York, N.Y. (David Crow of counsel), for appellant (one brief filed).
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, and Jeffrey O. Grossman of counsel), for respondent.
THOMAS R. SULLIVAN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the prosecutor made improper statements on summation, including commenting on his decision not to testify. These contentions are unpreserved for appellate review since the defendant failed to make timely and specific objections during the prosecutor's summation (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10, 19; People v. Mapp, 245 A.D.2d 307; People v. Persaud, 237 A.D.2d 538). In any event, many, if not all, of the prosecutor's comments were a fair response to the statements contained in the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396, 399; People v. Miller, 220 A.D.2d 778; People v. Stith, 215 A.D.2d 789; People v. Cox, 161 A.D.2d 724, 725; People v. Jakes, 181 A.D.2d 913). Any prejudice to the defendant caused by these comments was dissipated by the court's instructions to the jury (see, People v. Thomas, 147 A.D.2d 725; People v. Rivera, 142 A.D.2d 614, 615). Moreover, in light of the overwhelming evidence of the defendant's guilt, to the extent any remarks were improper, the error was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 237; People v. Dardain, 226 A.D.2d 551; People v. Roccaforte, 141 A.D.2d 775, 776).
SULLIVAN, J.P., FLORIO, LUCIANO and FEUERSTEIN, JJ., concur.