Opinion
February 3, 1995
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Denman, P.J., Lawton, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The contention that the prosecutor improperly commented during summation on defendant's failure to testify was not preserved for review (see, CPL 470.05; People v. Dien, 77 N.Y.2d 885, 886). We decline to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). In any event, the contention is without merit. The prosecutor's comment that certain testimony is "unchallenged" does not constitute a comment on defendant's failure to testify (see, People v Watson, 188 A.D.2d 315, lv denied 81 N.Y.2d 849).
By asking this Court to disregard that portion of his brief pertaining to the issue raised on his CPL 440.10 motion, defendant abandoned his remaining contention that he was denied effective assistance of counsel.