People v. O'Henry

by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered February 10, 2003, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). The defendant’s challenge to certain comments made by the prosecutor during summation is also unpreserved for appellate review, since the defense counsel failed to request curative instructions or move for a mistrial when the trial court sustained the defense counsel’s objection (see CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953 [1981]; People v Clemmings, 300 AD2d 672 [2002]; People v McHarris, 297 AD2d 824, 825 [2002]). In any event, any error was harmless under the circumstances (see People v Crimmins, 36 NY2d 230 [1975]; People v Valdez, 269 AD2d 550 [2000]). The defendant’s remaining contention is without merit. Santucci, J.P., Adams, Cozier and Rivera, JJ., concur.