Opinion
April 9, 1991
Appeal from the Supreme Court, Bronx County (Frank Blangiardo, J.).
Upon defendant's trial for murder, the prosecutor introduced defendant's statements in which he admitted renting a room to use in the murder and assisting an accomplice with the device used to strangle the victim. In its final instructions to the jury, the court commented on the summation arguments as follows: "You are to disregard the personal opinion of counsel as to the merits of some particular bit of evidence or testimony. That's his opinion and may not necessarily be yours." (Emphasis added.)
Contrary to defendant's contentions on this appeal, this comment cannot be escalated to the level of a direction to disregard the arguments and theories of counsel in summation, an instruction which has been condemned as judicial overreaching (cf., People v. Vasquez, 159 A.D.2d 262; People v. Reina, 94 A.D.2d 727). The court's observation here referred only to counsels' opinions, and the second sentence clearly left it open to the jury to accept or reject those opinions in the course of its deliberations.
We would also note that defendant's appellate objection to the instruction was not preserved (People v. Vasquez, supra).
Concur — Rosenberger, J.P., Wallach, Kupferman and Smith, JJ.