Opinion
124-124A
February 6, 2003.
Judgments, Supreme Court, Bronx County (Dominic Massaro, J.), rendered May 29, 2001, convicting defendant, after a jury trial, of two counts of promoting prison contraband in the first degree, and also convicting him, upon his plea of guilty, of promoting prison contraband in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 3½ to 7 years, unanimously affirmed.
Nisha M. Desai, for respondent.
Laura Burde, for defendant-appellant.
Before: Tom, J.P., Saxe, Ellerin, Lerner, Marlow, JJ.
Since defendant, in cross-examination and summation, raised issues as to the credibility of prosecution witnesses, the People's summation arguments on this subject were properly responsive (see People v. Overlee, 236 A.D.2d 133, 144, lv denied 91 N.Y.2d 976). Defendant's remaining challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the summation did not deprive defendant of a fair trial (see People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
The court's charge, viewed as a whole, sufficiently instructed the jury on the subject of burden of proof (see People v. Cubino, 88 N.Y.2d 998;People v. Fields, 87 N.Y.2d 821; see also People v. Greaves, 94 N.Y.2d 775).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.