Opinion
February 2, 1990
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Boomer, Green, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's primary contention on appeal is that he was denied a fair trial by prosecutorial misconduct on summation. Since no objections were made to any of the improper comments made during the prosecutor's summation, these errors have not been preserved for our review (see, CPL 470.05; People v Dawson, 50 N.Y.2d 311, 324). Further, after the prosecutor's summation defense counsel specifically raised these alleged errors and requested a curative instruction. A curative instruction was given by the court, without objection, and no request for additional instructions was made; therefore, the issue of the adequacy of this instruction has not been preserved for our review (see, People v Santiago, 52 N.Y.2d 865; People v Carter, 137 A.D.2d 826, lv denied 71 N.Y.2d 1024). Additionally, we note that many of the alleged prosecutorial improprieties on summation were in response to defense counsel's closing statements (see, People v Anthony, 24 N.Y.2d 696, 703-704; People v Rubin, 101 A.D.2d 71, 77-78). Finally, although the prosecutor was overzealous and improperly vouched for his own witness and called defendant a liar, we cannot say under all the circumstances that defendant was deprived of a fair trial (see, People v Widger, 126 A.D.2d 962, lv denied 69 N.Y.2d 1011; People v Barnes, 109 A.D.2d 179, 186).
Defendant also contends that reversal is mandated because of the prosecutor's failure to give an adequate racially neutral explanation for his peremptory challenge of a black juror (see, Batson v Kentucky, 476 U.S. 79). Since defense counsel failed to raise his Batson challenge until after the jury was sworn, his objection was untimely and this issue has not been preserved for our review (see, People v Harris, 151 A.D.2d 961).
We have reviewed defendant's remaining contention and find it to be without merit.