PEOPLE v. ROBBINS (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered October 25, 1994, convicting him of murder in the second degree (five counts), robbery in the first degree (two counts), attempted murder in the second degree (two counts), sodomy in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the court should have instructed the jury that evidence of guilt with regard to one criminal incident could not be considered evidence of guilt as to the other incidents charged in the indictment is not preserved for appellate review (see, CPL 470.05[2];  see also, People v. Vega, 237 A.D.2d 394, 655 N.Y.S.2d 423;  People v. Drake, 204 A.D.2d 479, 480, 611 N.Y.S.2d 906;  People v. Davis, 195 A.D.2d 605, 605, 602 N.Y.S.2d 546;  People v. Lewis, 175 A.D.2d 885, 886, 573 N.Y.S.2d 733).   In any event, as the counts of the indictment were not severable, such a charge would have been improper (see, CPL 200.20[2][b];  People v. Lewis, supra, at 886, 573 N.Y.S.2d 733).

The defendant's contention concerning the prosecutor's remarks on summation is unpreserved for appellate review as he failed to object to any of the remarks.   In any event, the prosecutor's summation did not deprive the defendant of a fair trial but constituted fair comment on the evidence and on the defense counsel's summation regarding that evidence (see, People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Patrona, 232 A.D.2d 432, 648 N.Y.S.2d 315;  People v. Simms, 222 A.D.2d 622, 636 N.Y.S.2d 631;  People v. Blair, 226 A.D.2d 470, 640 N.Y.S.2d 800;  People v. Clark, 222 A.D.2d 446, 447, 634 N.Y.S.2d 714;  People v. Harris, 209 A.D.2d 432, 619 N.Y.S.2d 589;  People v. Rosario, 195 A.D.2d 577, 601 N.Y.S.2d 836;  People v. Miller, 183 A.D.2d 790, 791, 583 N.Y.S.2d 517;  People v. Rivera, 158 A.D.2d 723, 552 N.Y.S.2d 171).

MEMORANDUM BY THE COURT.