People v. Cudak

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pitaro, J.), rendered December 22, 1987, convicting him of burglary in the second degree, criminal mischief in the fourth degree, and menacing, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that he was deprived of a fair trial by the prosecutor’s allegedly prejudicial comments made during her summation lacks merit. Many of the remarks were 771 unobjected to at trial, and therefore any claim of error with respect thereto is not preserved for appellate review (CPL 470.05 [2]). In any event, the record reveals that most of the comments made during the prosecutor’s summation stayed within the four corners of the evidence (see, People v Ashwal, 39 NY2d 105, 109), or constituted a fair response to defense counsel’s summation (see, People v Street, 124 AD2d 841). To the extent that the prosecutor’s remarks may have been improper, in light of the overwhelming evidence of the defendant’s guilt, we find that they did not deprive the defendant of a fair trial (see, People v Galloway, 54 NY2d 396). The defendant’s request for a waiver of the mandatory surcharge is premature (see, People v Smallwood, 140 AD2d 646; People v Williams, 131 AD2d 525). Brown, J. P., Kunzeman, Eiber and Hooper, JJ., concur.