People v. Vargas

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered November 17, 1988, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s claims regarding the legal sufficiency of the evidence are not preserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. It was improper for the prosecutor to argue during summation that one of the People’s witnesses invoked his Fifth Amendment right against self-incrimination in order to protect the defendant (see, People v Berg, 59 NY2d 294, 299; Rado v Connecticut, 607 F2d 572, 581). This error, however, was harmless given the court’s charge that a witness’s refusal to testify on Fifth Amendment grounds could not be considered in assessing the defendant’s guilt (see, People v Berg, supra). The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J. P., O’Brien, Ritter and Joy, JJ., concur.