Opinion
August 19, 1991
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The defendant failed to establish a prima facie case that the prosecutor's peremptory challenges were employed for a discriminatory purpose (see, Batson v Kentucky, 476 U.S. 79, 96; People v Scott, 70 N.Y.2d 420; People v Gallagher, 158 A.D.2d 469; People v Liguori, 149 A.D.2d 624, 625; People v Barlow, 148 A.D.2d 739; People v Malbon, 144 A.D.2d 698). In any event, the prosecutor promptly set forth race-neutral explanations for the peremptory challenges in question.
The defendant's claim that the testimony of the arresting officer improperly bolstered the complainant's out-of-court identification of the defendant in violation of People v Trowbridge ( 305 N.Y. 471) is unpreserved for appellate review (see, CPL 470.05; People v Medina, 53 N.Y.2d 951, 953; People v Tinsley, 159 A.D.2d 602). The trial court sustained defense counsel's objection and instructed the jury to disregard the officer's testimony concerning the complainant's identification of the defendant. Defense counsel thereafter did not request any further curative instructions or move for a mistrial. In any event, any error in the admission of such bolstering testimony must be deemed harmless in light of the ample opportunity which the complainant had to observe the defendant during the commission of the crime (see, People v Johnson, 57 N.Y.2d 969, 970-971; People v Crimmins, 36 N.Y.2d 230, 241-242; People v Gannaway, 170 A.D.2d 529; People v Liberatore, 167 A.D.2d 425; People v Tinsley, supra, at 602). The strength of the complainant's identification evidence precluded any significant probability that the jury would have acquitted the defendant had it not been for the bolstering errors (see, People v Johnson, supra; People v Mobley, 56 N.Y.2d 584; People v Crimmins, supra; People v Tinsley, supra, at 603).
We also find that the statements made by the prosecutor during summation which the defendant contends constituted prosecutorial misconduct were either proper responses to the defense summation (see, People v Anderson, 154 A.D.2d 607, 608; People v Sykes, 151 A.D.2d 523, 524), or properly cured by appropriate curative instructions (see, People v Medina, supra, at 953; People v Johnson, 154 A.D.2d 618, 619), and thus the issue of their propriety is not preserved for appellate review due to defense counsel's acquiescence in the curative instructions given by the court (see, People v Medina, supra, at 953).
We have considered the defendant's remaining contentions and find them to be without merit. Kooper, J.P., Sullivan, Lawrence and Rosenblatt, JJ., concur.