Opinion
May 30, 1997
Present — Green, J.P., Pine, Lawton, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that, in view of his acquittal of murder in the second degree and manslaughter in the first degree, the verdict convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree is inconsistent and repugnant. Because defendant failed to raise that contention before the jury was discharged, it is unpreserved for our review (see, People v Alfaro, 66 N.Y.2d 985, 987; People v. Satloff; 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674). We decline to exercise our power to reach that issue as a matter of discretion in the interest of justice (see, CPL 470.15[a]).
Upon our review of the record, we conclude that the verdict is supported by legally sufficient evidence and is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). We reject defendant's contention that prosecutorial misconduct on summation warrants reversal. The prosecutor's comments were, for the most part, fair comment on the evidence, and, in any event, "any error was harmless in light of the overwhelming evidence of the defendant's guilt and the court's subsequent instruction, which served to cure any alleged prejudice" ( People v. Walker, 224 A.D.2d 559, 560, lv denied 88 N.Y.2d 887). Finally, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Erie County, Himelein, J. — Manslaughter, 2nd Degree.)