Opinion
April 17, 2001.
Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered May 5, 1997, convicting defendant, after a jury trial, of murder in the second degree and two counts of attempted murder in the second degree, and sentencing him to concurrent terms of 25 years to life, 5 to 10 years and 5 to 10 years, unanimously affirmed.
Allen H. Saperstein, for Respondent.
Joanne Legano Ross, for Defendant-Appellant.
Before: Sullivan, P.J., Andrias, Ellerin, Rubin, Buckley, JJ.
The court properly exercised its discretion in denying defendant's mistrial motion made on the basis of a comment by the prosecutor in summation that impermissibly referred to the fact that defendant did not testify. The court's prompt curative instruction and its charge to the jury regarding its obligation not to draw an adverse inference from defendant's failure to testify were sufficient to prevent any prejudice (see, People v. Velasquez, 187 A.D.2d 277, lv denied 81 N.Y.2d 848). Moreover, the evidence against defendant was overwhelming. The other portions of the prosecutor's summation that are challenged by defendant on appeal were generally responsive to the defense summation and were, in any case, not so egregious as to deprive defendant of a fair trial (see,People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.