Opinion
June 2, 1994
Appeal from the Supreme Court, Bronx County (Ira Globerman, J.).
Defendant's presentence motion attacking the verdict on the ground of jury misconduct was properly denied since the trial court was without authority to consider defendant's oral motion (CPL 330.30; 330.40 [2] [a]). In addition, since defendant failed to submit written affidavits from any of the jurors and did not request an evidentiary hearing, he failed to develop an adequate record for appellate review (see, People v. Olivo, 52 N.Y.2d 309, 320). In any case, were we to review defendant's claims, we would find that the alleged instances of juror misconduct did not constitute grounds for reversal of defendant's conviction (compare, People v. Cortez, 172 A.D.2d 766, affd 80 N.Y.2d 855, with People v. Brown, 48 N.Y.2d 388).
Defendant's argument that the prosecutor's summation deprived him of a fair trial since the prosecutor falsified the evidence, vouched for the credibility of the complainants, acted as an unsworn witness, and appealed to the jurors' emotions and sympathies is largely unpreserved and we decline to review in the interest of justice (CPL 470.05). In any event, the prosecutor's summation comments constituted appropriate response to the defense summation (People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912), and fair comment on the evidence, presented within the broad bounds of rhetorical comment permissible in closing argument (People v. Galloway, 54 N.Y.2d 396).
Defendant received an appropriate sentence since the sentencing court clearly indicated that it had taken into account mitigating factors in sentencing defendant to less than the maximum sentence.
Concur — Carro, J.P., Wallach, Ross, Rubin and Tom, JJ.