Opinion
(Ind. No. 12082/97)
Submitted June 25, 2001.
August 20, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrero, J.), rendered August 31, 1998, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Sonia Mikolic-Torreira of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, NANCY E. SMITH, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is affirmed, with costs.
The defendant's claim that the prosecutor's allegedly improper comments during summation constituted reversible error is, for the most part, not preserved for appellate review (see, CPL 470.05; People v. Tonge, 93 N.Y.2d 838; People v. Scotti, 220 A.D.2d 543). In any event, the comments and conduct did not exceed permissible rhetoric, were properly responsive to the defendant's summation, and were a fair comment on the evidence (see, People v. Galloway, 54 N.Y.2d 396, 399; People v. Guerrero, 250 A.D.2d 703; People v. Gamble, 215 A.D.2d 584). The defendant's claim of error concerning the jury charge on recent and exclusive possession is not preserved for appellate review. In any event, the charge was properly balanced and did not convey an opinion as to the defendant's guilt or innocence (see, People v. Ladd, 89 N.Y.2d 893, 895-896).