Opinion
March 13, 1998
Appeal from Judgment of Supreme Court, Monroe County, Wisner, J. — Criminal Possession Controlled Substance, 3rd Degree.
Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant refused Supreme Court's offer to give a curative instruction after the court denied defendant's postsummation motion for a mistrial. Thus, defendant waived his contention that he was denied a fair trial by prosecutorial misconduct on summation (see, People v. Restivo, 226 A.D.2d 1106, lv denied 88 N.Y.2d 883; People v. Lasage, 221 A.D.2d 1006, lv denied 88 N.Y.2d 849). In any event, the conduct complained of was not so egregious as to require reversal (see, People v. Tolliver, 217 A.D.2d 978, lv denied 86 N.Y.2d 847).
The definite sentence of six months' incarceration imposed upon defendant's conviction of loitering in the first degree is illegal (see, Penal Law § 70.15), and thus we sentence defendant to a concurrent term of incarceration of three months on that count.