Opinion
May 21, 1998
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
Defendant failed to preserve his current claim that the court did not follow the three-step Batson protocols in determining various claims of discriminatory exercise of peremptory challenges ( People v. Williams, 238 A.D.2d 196), and we decline to review them in the interest of justice. Were we to review them, we would find that the court properly determined the issues raised, based upon its assessment of the proffered reasons for the peremptory challenges ( see, People v. Payne, 88 N.Y.2d 172). The court's express and implied findings as to pretextuality are entitled to great deference and are supported by the record.
Since there was "a direct contradiction not attributable to mistake, assumption or faulty memory" between defendants testimony and that of the People's main witnesses, the prosecutor properly inquired of defendant whether the People's witnesses were lying ( People v. Overlee, 236 A.D.2d 133, 140).
Defendants belated motion for a mistrial based on the prosecutors summation comments was not adequate to preserve his current claims of error ( People v. Molina, 242 A.D.2d 453, lv denied 91 N.Y.2d 895), and we decline to review them in the interest of justice. Were we to review them, we would find no basis for reversal. The court properly sustained objections to the prosecutors summation comments when valid objections were entered, and gave appropriate instructions to the jury where necessary, which instructions presumably were understood and followed by the jury ( People v. Davis, 58 N.Y.2d 1102). In all other respects, the prosecutors summation arguments constituted fair comment on the evidence and appropriate response to the defense summation and did not serve to deprive defendant of a fair trial ( see, People v. D'Alessandro, 184 A.D.2d 114, lv denied 81 N.Y.2d 884).
Defendants argument addressed to the purported variance between the indictment charging use of a "pistol" and the proof establishing use of a "revolver" is unpreserved and without merit. The term "revolver" is interchangeable with the term "revolving pistol" ( see, Matter of Long Is. Antique Gun Collectors Assn. v. Frank, 53 A.D.2d 644; People v. Wansker, 191 App. Div. 875, 876).
We have considered defendants other claims of error and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Tom and Saxe, JJ.