People v. Koleskor

Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Aronin, J.), rendered June 8, 1984, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s claim, raised for the first time on appeal, that it was error to permit cross-examination of his alibi witness concerning her pretrial silence, without first calling a bench conference and without issuing a curative charge (see, People v Dawson, 50 NY2d 311), has not been properly preserved for appellate review (see, People v Walker, 104 AD2d 573; People v Rossman, 95 AD2d 873). In any event, a proper foundation was laid in this case (see, People v Dawson, supra, at 321, n 4), and the defendant’s failure to request either a bench conference or a curative instruction relieved the trial court of any such obligation (see, People v Colarco, 52 NY2d 801; People v Payne, 50 NY2d 867, 869; People v Campbell, 123 AD2d 437, lv granted 69 NY2d 878). Likewise, the defendant’s contentions that the trial court’s charge improperly instructed the jury regarding both the defendant’s alibi and the evaluation of evidentiary inconsistencies are unpreserved for appellate review. No specific requests for instructions were made prior to the charge nor were any objections or requests to further instruct the jury made. Having failed to alert the court to any claimed inadequacies at a time when they could promptly be corrected, the defendant is now precluded from raising such objections (see, People v Hoke, 62 NY2d 1022; People v Aschheim, 119 AD2d 757, lv denied 68 NY2d 912). Furthermore, we see no just cause for the exercise of our interest of justice jurisdiction (see, People v Walker, supra; People v Thompson, 97 AD2d 554). The defendant’s contention that the prosecutor engaged in "overreaching” during summation is also unpreserved for [880] appellate review. In any event, while some of the language used by the prosecutor may have been unnecessarily harsh in his description of the defendant and the crime, all of the comments were inferences properly drawn from the facts in evidence (see, People v Bailey, 58 NY2d 272). Further, in view of the attempts by defense counsel to undermine the credibility of the prosecution witnesses, the prosecutor was justified in his comments concerning the credibility of the People’s witness (see, People v Turner, 120 AD2d 629, lv denied 68 NY2d 673; People v Martin, 112 AD2d 387, lv denied 66 NY2d 920; People v Blackman, 88 AD2d 620). To the extent that any of the prosecutor’s comments were improper, any prejudice suffered by the defendant was harmless, and did not deprive him of a fair trial (see, People v Crimmins, 36 NY2d 230). We have considered the defendant’s remaining contentions and find them to be without merit. Lawrence, Kunzeman and Sullivan, JJ., concur.