Opinion
October 26, 1987
Appeal from the Supreme Court, Queens County (Dufficy, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's assertion, the evidence in this case was legally sufficient to support his conviction (see, People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v. Contes, 60 N.Y.2d 620). Moreover, upon the exercise of our factual review power, we find that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15). The defendant was identified as the attacker by the complainant, who had been acquainted with him for several years. The defendant's alibi, that he had been in the company of his sister and her boyfriend at the time in question, presented a credibility issue for the jury's resolution (see, People v Rosenfeld, 93 A.D.2d 872, lv denied 59 N.Y.2d 977).
We also reject the defendant's contention that he was denied a fair trial due to remarks made during the trial by the prosecutor. Although several of these remarks may have been improper, those that were objected to at the trial were stricken and met with immediate curative instructions which were sufficient to dispel whatever prejudicial effect the remarks may have had (see, People v. Jones, 120 A.D.2d 747; People v Walters, 116 A.D.2d 757, lv denied 67 N.Y.2d 891). Moreover, the cumulative effect of the comments was not so prejudicial as to have compromised the defendant's right to a fair trial (see, People v. Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837).
Finally, we find no merit in the defendant's claim that the trial court's instructions to the jury regarding the nature of an indictment contained "completely unnecessary and possibly misleading" material (see, People v. Fortt, 35 N.Y.2d 921, revg 42 A.D.2d 859 on dissenting mem at App. Div.). While we would reiterate the admonition that a "defendant [is] entitled to a flat charge that the indictment [is] no evidence of guilt" (People v. McCutcheon, 14 A.D.2d 482, 483), the trial court's instructions in this case did not depart in either substance or form from the recommended formulation for such a charge (see, 1 CJI[NY] 6.02), and were proper. Mollen, P.J., Eiber, Kunzeman and Spatt, JJ., concur.