PEOPLE v. PHILBERT (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered February 27, 2007, convicting him of assault on a peace officer, police officer, fireman, or emergency medical services professional, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that certain comments made by the prosecutor during summation and the cumulative effect of prosecutorial misconduct during summation constituted reversible error is unpreserved for appellate review since the defendant made only general objections, did not request curative instructions when the objections were sustained, and did not timely move for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2];  People v. Daley, 50 A.D.3d 1051, 1051, 855 N.Y.S.2d 678;  People v. Wright, 40 A.D.3d 1021, 1021, 837 N.Y.S.2d 217;  People v. Williams, 27 A.D.3d 673, 811 N.Y.S.2d 124;  People v. Malave, 7 A.D.3d 542, 542, 775 N.Y.S.2d 588;  People v. White, 5 A.D.3d 511, 511, 772 N.Y.S.2d 601;  People v. Evans, 291 A.D.2d 569, 569, 738 N.Y.S.2d 244;  People v. Livigni, 288 A.D.2d 323, 324, 732 N.Y.S.2d 875).   In any event, most of the challenged remarks constituted fair comment on the evidence or were responsive to defense counsel's summation (see People v. Crawford, 54 A.D.3d 961, 961, 863 N.Y.S.2d 830;  People v. Applewhite, 50 A.D.3d 1046, 1046, 856 N.Y.S.2d 230).   Although some of the remarks were improper, they were not so egregious as to deprive the defendant of a fair trial (see People v. Nisvis, 56 A.D.3d 574, 867 N.Y.S.2d 192;  People v. Mathis, 55 A.D.3d 628, 629, 865 N.Y.S.2d 627;  People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).