PEOPLE v. APPLEWHITE (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered February 3, 2006, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's claim that he was deprived of a fair trial by certain statements made by the prosecutor during summation is not preserved for appellate review as he either failed to object to the prosecutor's statements, or made only general objections, and did not seek curative instructions or move for a mistrial when his objections were sustained (see CPL 470.05;  People v. Morris, 2 A.D.3d 652, 768 N.Y.S.2d 379;  People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57).   In any event, the prosecutor's statements, for the most part, constituted “fair comment on the evidence and the inferences to be drawn therefrom” (People v. McHarris, 297 A.D.2d at 825, 748 N.Y.S.2d 57), or fair response to defense counsel's comments during summation (see People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651;  People v. Vaughn, 209 A.D.2d 459, 619 N.Y.S.2d 573;  People v. Clark, 222 A.D.2d 446, 634 N.Y.S.2d 714), and any improper statements “were not so flagrant or pervasive as to deny the defendant a fair trial” (People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95;  see People v. Svanberg, 293 A.D.2d 555, 739 N.Y.S.2d 837).

 The defendant's claim that he was deprived of a fair trial because the court's Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was unbalanced and coercive also is not preserved for appellate review, as he did not ask for specific language for the charge (see People v. Auguste, 294 A.D.2d 371, 741 N.Y.S.2d 700;  People v. Arnold, 226 A.D.2d 468, 641 N.Y.S.2d 318).   In any event, the court's Allen charge was not coercive (see People v. Kinard, 215 A.D.2d 591, 626 N.Y.S.2d 858;  People v. Perdomo, 204 A.D.2d 358, 611 N.Y.S.2d 560;  People v. Austin, 168 A.D.2d 502, 562 N.Y.S.2d 745).