PEOPLE v. CHISLUM (1997)

 On appeal from a judgment convicting him of two counts of murder in the second degree (Penal Law § 125.25[1], [3] ) and other crimes, defendant contends that he was deprived of a fair trial by prosecutorial misconduct and an erroneous jury charge.   Because defendant failed to object to any of the alleged instances of prosecutorial misconduct and to the charge as given, that contention is unpreserved for our review (see, CPL § 470.05 [2] ).   Were we to exercise our power to review the contention as a matter of discretion in the interest of justice (see, CPL § 470.15[6][a] ), we would conclude that it lacks merit.   Although the prosecutor improperly suggested to the jury that defendant had a reason to lie and had tailored his trial testimony to fit the prosecution's proof (see, People v. Paul, 229 A.D.2d 932, 933, 645 N.Y.S.2d 682;  People v. Smith, 192 A.D.2d 806, 808, 596 N.Y.S.2d 539, lv. denied 81 N.Y.2d 1080, 601 N.Y.S.2d 600, 619 N.E.2d 678), those isolated instances of prosecutorial misconduct did not cause “such substantial prejudice to the defendant that he has been denied due process of law” (People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307;  see, People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348).

 Defendant further contends that Supreme Court erred in its charge.   Defendant consented to that charge, thereby waiving any claim of error.   Defendant's sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: