Opinion
July 6, 1995
Appeal from the Supreme Court, Bronx County (Richard Lee Price, J.).
Defendant's claim of prosecutorial misconduct in summation is largely unpreserved. Were we to review the comments in question, including the characterization of defendant's testimony as a "fairytale", we would find that they were properly responsive to defense arguments and constituted fair comment on the evidence presented within the broad bounds of rhetorical comment permissible in closing argument ( see, People v. Wright, 212 A.D.2d 413). The prosecutor's statement in respect to defendant's videotape admission that he had previously seen the gun in question was the subject of a prompt curative instruction by the court. We perceive no abuse of discretion in sentencing. The application for a waiver of the mandatory surcharge is premature ( People v. Ramirez, 208 A.D.2d 381, lv denied 84 N.Y.2d 1037).
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Tom, JJ.