Opinion
May 25, 1993
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
Defendant, while acting in concert with his cousin, shot and killed his parents with a .22 caliber rifle. The principal witness, a friend of defendant, testified that while he was in defendant's bedroom waiting for defendant to retrieve car keys, he heard two gunshots. He ran to the hallway, and observed defendant holding a rifle pointed toward the kitchen where defendant's parents were. Immediately thereafter, the witness saw defendant's cousin grab the gun from defendant and fire five or six shots into the kitchen. The witness, who thought that defendant had been joking when he offered the witness $5,000 to commit the killings, testified that at the cousin's urging he accompanied defendant and the cousin into defendant's car for approximately three hours, after which time defendant finally complied with the witness's repeated requests to be taken home.
Defendant's claim that he was entitled to an instruction that the witness was an accomplice is unpreserved inasmuch as he failed to request the charge or object to the court's instruction as given (People v Navares, 162 A.D.2d 422, 424, lv denied 76 N.Y.2d 942), and we decline to review in the interest of justice. Were we to review, we would find that the court did not err in failing, sua sponte, to instruct the jury that the witness was an accomplice whose testimony required corroboration since there was no evidence in the record that the witness was aware that the shooting was to occur or that he participated in the planning or execution thereof (People v Tucker, 72 N.Y.2d 849).
Defendant failed to object to the comments made by the prosecutor in his opening statement and during summation and thus they are unpreserved for appellate review as a matter of law, and we decline to review in the interest of justice. Were we to review, we would find that the remarks made in summation constituted fair comment on the evidence (see, People v Ashwal, 39 N.Y.2d 105, 109), and were properly made in response to defense counsel's summation. Further, any prejudice that might have resulted from the prosecutor's remark in his opening statement that the victims were "hard working people" who "gave [defendant] everything he could have asked for" was dissipated by the court's charge that the jury's verdict not be motivated by sympathy or influenced by "passion, feelings, bias, or prejudice"; instructions which were presumably followed (People v Davis, 58 N.Y.2d 1102, 1104).
Concur — Sullivan, J.P., Carro, Milonas, Kupferman and Ross, JJ.