PEOPLE v. PRINCE (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered November 15, 2004, convicting him of attempted murder in the second degree, assault in the first degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant preserved for appellate review his claim that the prosecutor, in summation, vouched for the credibility of the People's witnesses.   The defendant objected to many of the prosecutor's comments in a timely fashion, requested curative instructions, and then, at the conclusion of the summation, moved for a mistrial, which the trial court denied in part because it found that the prosecutor, in challenging the defendant's arguments, had not vouched for the credibility of the People's witnesses (see CPL 470.05[2];  cf. People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;  People v. Perez, 18 A.D.3d 480, 794 N.Y.S.2d 439;   People v. Powell, 4 A.D.3d 489, 771 N.Y.S.2d 678).   Moreover, to the extent that the defendant failed to preserve for appellate review certain challenges to the prosecutor's comments, we review those claims in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] [a];  People v. Brown, 26 A.D.3d 392, 393, 812 N.Y.S.2d 561;  People v. Smith, 288 A.D.2d 496, 733 N.Y.S.2d 237).

 Many of the prosecutor's summation comments were proper, as they were a fair response to the defense counsel's summation and a fair comment on the evidence (see People v. Galloway, 54 N.Y.2d 396, 399, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Marks, 6 N.Y.2d 67, 77-78, 188 N.Y.S.2d 465, 160 N.E.2d 26;  People v. Woodson, 31 A.D.3d 678, 818 N.Y.S.2d 295, lv. denied 7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1147;  People v. Martinez, 27 A.D.3d 665, 666, 810 N.Y.S.2d 686;  People v. Mattia, 8 A.D.3d 299, 299-300, 777 N.Y.S.2d 320;  People v. West, 237 A.D.2d 470, 472, 655 N.Y.S.2d 570).   Any prejudice that may have resulted from the prosecutor's vouching for the credibility of the People's witnesses based on the statement that the witnesses could not have been mistaken in their identification of the defendant was alleviated when the trial court sustained the defendant's objections and provided curative instructions to the jury (see People v. Berg, 59 N.Y.2d 294, 299-300, 464 N.Y.S.2d 703, 451 N.E.2d 450;  People v. Williams, 14 A.D.3d 519, 787 N.Y.S.2d 399;  People v. Efferson, 300 A.D.2d 674, 751 N.Y.S.2d 888;  People v. Cabrera, 272 A.D.2d 623, 708 N.Y.S.2d 628).   To the extent that any alleged inappropriate comment remained unaddressed, any error was harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  see also People v. Dardain, 226 A.D.2d 551, 640 N.Y.S.2d 817;  People v. Elliot, 216 A.D.2d 576, 628 N.Y.S.2d 761;  People v. James, 162 A.D.2d 618, 556 N.Y.S.2d 944).

The defendant's challenge to the trial court's jury charge is unpreserved for appellate review (see CPL 470.05[2];  People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266;  People v. Taylor, 11 A.D.3d 715, 782 N.Y.S.2d 921), and in any event, is without merit.