Opinion
Submitted June 9, 2000
August 28, 2000
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 29, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Steven J. Miraglia of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Michael Gore, and Marie-Claude P. Wrenn of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that reversible error occurred because of prosecutorial misconduct is not preserved for appellate review (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245, 248-252). In any event, it is without merit. The references to the ethnic origin of the defendant during the opening statement and upon the direct testimony of the prosecution witnesses did not constitute a "thematic reference to * * * race" as to warrant reversal (People v. Rivera, 136 A.D.2d 520, affd 73 N.Y.2d 941; see, People v. Ali, 158 A.D.2d 460; cf., People v. Thomas, 129 A.D.2d 596). Additionally, the prosecutor's statements during summation were a fair comment on the evidence (see, People v. Ashwal, 39 N.Y.2d 105; People v. Plowden, 236 A.D.2d 489) or responsive to arguments presented in the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).