Opinion
May 1, 1990
Appeal from the Supreme Court, New York County, Leslie Crocker Snyder, J., Alvin Schlesinger, J.
Defendant admitted slashing the complainant, Michael Francis, in the chest. The wound required six internal and 35 external stitches even though Francis was wearing a three-quarter-length leather coat, a heavy sweater and a shirt. Defendant conceded that Francis was unarmed and maintained that he took out a razor, allegedly only one-inch long, intending only to scare Francis and get him to leave defendant alone. Francis testified that defendant initiated the conflict, and defendant testified that he drew the weapon only after Francis threw him up against a van and that he "accidently cut" Francis while struggling to free himself from a bear hug. Defendant, however, admitted on cross-examination that his written statement, made at the time of his arrest some 12 days after the date of the incident, is devoid of any assertion that the injury to Francis was accidental.
For the first time upon this appeal, defendant raises objections to certain comments made in the course of summation by the prosecution. The Trial Justice on two occasions gave curative instructions to the jury sua sponte, but no objection was raised with respect to the parts of the prosecutor's summation challenged on this appeal. The issue is therefore not preserved for appellate review (CPL 470.05; People v. Kolb, 118 A.D.2d 590, 591, lv denied 67 N.Y.2d 945). While some of the prosecutor's remarks were intemperate and he was properly admonished by the court, both sides attacked the veracity of the other's witnesses. In our view, defendant was fairly convicted and retrial is unwarranted (People v. Galloway, 54 N.Y.2d 396, 400-401).
Concur — Kupferman, J.P., Ross, Ellerin, Wallach and Rubin, JJ.