Opinion
December 26, 1989
Appeal from the Supreme Court, Queens County (Dufficy, J.).
Ordered that the judgment is affirmed.
The defendant's challenge to the trial court's decision to have the court reporter read back certain portions of its charge in response to a jury request has not been preserved for appellate review in view of the defendant's failure to register an objection to the court's initial charge, or to the contents of the portion read back to the jury, or to the manner in which the court complied with the jury's request (see, CPL 470.05; People v Gonzales, 77 A.D.2d 654, affd 56 N.Y.2d 1001). In any event, we find the court did meaningfully respond to the jury's request (see, People v Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847) by ordering the requested portions of its initial charge, which, we note, adequately covered the relevant topics, to be read back to the jury (see, People v Malloy, supra; see also, People v Davis, 118 A.D.2d 206).
Furthermore, we do not agree with the defendant's argument that the jury verdict acquitting him of criminal possession of a controlled substance in the third degree and convicting him of criminal sale of a controlled substance in the third degree was repugnant. A determination of whether a verdict is repugnant is based solely on a review of the trial court's jury charge regardless of its accuracy (see, People v Goodfriend, 64 N.Y.2d 695; People v Tucker, 55 N.Y.2d 1). Viewing the elements of the crimes as charged to the jury herein, it is clear that the jury verdict was not repugnant.
Finally, we find no merit to the defendant's contention that he was deprived of a fair trial by reason of the prosecutor's summation. Although most of the challenged remarks were cited by the defendant as a basis for his unsuccessful mistrial motion and, thus, were preserved for appellate review, the remaining remarks were not objected to by the defendant and were, thus, not preserved for appellate review (see, CPL 470.05; see also, People v Balls, 69 N.Y.2d 641). We conclude that most of the prosecutor's remarks which the defendant challenges on appeal constituted either a fair comment on the evidence and/or a fair response to the defense summation (see, People v Rawlings, 144 A.D.2d 500). Moreover, the error, if any, caused by the prosecutor's remaining remarks was harmless in view of the overwhelming proof of the defendant's guilt (see, People v Crimmins, 36 N.Y.2d 230). Mollen, P.J., Thompson, Lawrence and Eiber, JJ., concur.