Opinion
April 2, 1991
Appeal from the Supreme Court, Bronx County, Daniel Sullivan, J.
On September 9, 1988, defendant was observed by two police officers in Bronx County, driving a 1987 Chevrolet van that had been reported stolen 9 days earlier. On the People's direct case, the arresting officer testified that at the time of arrest, after defendant told the officer that he was merely moving the van for somebody, he did not respond when asked to identify that person. As there was no objection to the admission of that testimony, the issue was not properly preserved for appellate review (People v Thomas, 50 N.Y.2d 467). Were we to review we would nonetheless find the argument unpersuasive. Furthermore, interest of justice review is unwarranted. Defense counsel's trial strategy included extensive cross-examination on this brief testimony, which carried through into the defense summation, where he made affirmative use of defendant's statement, even suggesting that the arresting officer was derelict in his duty for not further investigating defendant's claim of innocent purpose. In such circumstances, and in view of the overwhelming evidence of defendant's guilt, the admission of this brief testimony was rendered harmless and in any event was not error (People v Crimmins, 36 N.Y.2d 230).
Defendant's claim of improper comment on defendant's silence by the prosecutor in summation is rejected as meritless, as the prosecutor's summation comments constituted fair comment on the evidence (People v. Fielding, 158 N.Y. 542), and appropriate response to the defense summation (see, People v. Morgan, 66 N.Y.2d 255). Additionally, defendant's claim of error regarding the trial court's "no adverse inference" charge is rejected on the grounds that the court's comprehensive charge was given in response to defendant's specific request therefor, for no specific objection raised, and thus defendant does not present a reviewable issue (see, e.g., People v. Santiago, 52 N.Y.2d 865).
Finally, in the circumstances this court perceives no abuse of discretion by the trial court in imposing sentence. (People v Davis, 92 A.D.2d 177, affd 61 N.Y.2d 202.)
Concur — Milonas, J.P., Ross, Kassal, Smith and Rubin, JJ.