Opinion
1792
October 8, 2002.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 8, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 to 9 years, unanimously affirmed.
CHRISTOPHER WILSON, for respondent.
LYSSA M. SAMPSON, for defendant-appellant.
Before: Tom, J.P., Sullivan, Rosenberger, Ellerin, Rubin, JJ.
Since defendant made no objections during the People's summation, his belated motion for a mistrial failed to preserve his present claims since it did not allow the court to correct any improper comments at the time they were made (People v. Jackson, 189 A.D.2d 563, lv denied 81 N.Y.2d 887), and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged comments were generally responsive to issues raised by the defense and that they did not 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).
We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223,lv denied 98 N.Y.2d 641; People v. Kulakov, 278 A.D.2d 519, lv denied 96 N.Y.2d 785), which claim is unpreserved.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.