PEOPLE v. WILLIAMS (1997)

Appeal by the defendant from a judgment of the County Court, Nassau County (Kowtna, J.), rendered April 11, 1995, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On Ash Wednesday, the prosecutor appeared in court with ashes on his forehead, having informed the court and defense counsel on the previous day of his intention to do so.   Defense counsel requested that the court instruct the prosecutor to remove the ashes or, in the alternative, to adjourn the trial for one day.   The court denied the application but offered to give a curative instruction.   Defense counsel then indicated he would decide whether to seek a curative instruction after observing “whether or not any juror is wearing ashes”.   No subsequent request for a curative instruction was made.   The record reveals that none of the jurors were, in fact, wearing ashes.

The defendant argues that he was deprived of a fair trial as a result of the display of the ashes on the prosecutor's forehead.   Since, notwithstanding the trial court's offer, no curative instruction was sought, this argument is unpreserved for appellate review (see, CPL 470.05[2];  People v. Hollis, 215 A.D.2d 777, 778, 627 N.Y.S.2d 415).

MEMORANDUM BY THE COURT.