Opinion
December 5, 1991
Appeal from the Supreme Court, Bronx County (David Stadtmauer, J.).
Defendant contends that he was deprived of a fair trial because during cross-examination, the prosecutor, among other things, sarcastically repeated defendant's answers, ignored the court's admonitions to alter his mode of questioning, and attacked defendant by referring to him as a "convicted felon". However, with only one exception, defense counsel did not object to any of the remarks at issue, and thus they are not preserved for review by this court as a matter of law (People v Trail, 172 A.D.2d 320, lv denied 78 N.Y.2d 975). When the court admonished the prosecutor for his repetition of defendant's answers, defense counsel did not request curative instructions. (People v Medina, 53 N.Y.2d 951, 953.) Similarly, with respect to the comments made by the prosecutor on summation, these too went without objection and are unpreserved. Defendant's contention that his motion for mistrial preserved his claims with respect to the prosecutor's comments during cross-examination is without merit, since the motion was made after much of the complained of conduct had already occurred, depriving the court of an opportunity to remedy the misconduct (People v Narayan, 54 N.Y.2d 106, 112).
In any event, if we were to reach these issues in the interest of justice, we would find them to be without merit inasmuch as the majority of the prosecutor's comments, in both cross-examination and summation, were responsive to defendant's testimony and comments made by defense counsel (People v Trail, supra).
Moreover, to the extent that the prosecutor's comments were inappropriate, the error was harmless in view of the overwhelming evidence of guilt.
Concur — Murphy, P.J., Carro, Rosenberger, Ross and Rubin, JJ.