People v. Irby

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered January 9, 1997, convicting him of criminal sale of a controlled substance in the third degree, upon á jury verdict, and imposing sentence. Ordered that the judgment is affirmed. [779] The defendant contends, inter alia, that certain remarks made by the prosecutor during summation constituted reversible error. He claims that the prosecutor’s references to the defendant’s failure to call a certain undercover police officer as a witness shifted the burden of proof from the prosecution to the defense. While the prosecutor’s comments were improper (see, People v DeJesus, 137 AD2d 761), the court sustained the defense objections, provided a prompt curative instruction to the jury, and granted the defense application for a missing-witness charge. Under the circumstances, there was no reasonable possibility that the prosecutor’s comments affected the verdict (see, People v Brown, 208 AD2d 414; People v Davis, 128 AD2d 800; see also, People v Crimmins, 36 NY2d 230). The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Miller, Thompson and Santucci, JJ., concur.