Opinion
April 4, 1995
Appeal from the Supreme Court, Bronx County (Fred Eggert, J.).
The record supports defendant's contention that he was not present when certain venirepersons were questioned at sidebar regarding their ability to be fair and impartial. However, as none of the individuals in question served on the jury, any loss of opportunity by defendant to assess the verbal and subliminal responses of the individuals for indications of bias or hostility cannot be said to have operated to defendant's prejudice, and reversal is not required (People v Perez, 196 A.D.2d 781, 783, lv denied 82 N.Y.2d 900).
The initial references by the complainant to a prior uncharged crime were stricken from the record by the court, with instructions that the jury disregard them. As defendant did not object to the court's curative instructions, nor request any additional instruction, he has failed to preserve his current claim that the court's curative actions were inadequate (People v Comer, 73 N.Y.2d 955).
As the initial references to the uncharged crime were inadvertent and stricken, and as defendant utilized the uncharged crime affirmatively in his defense centered on the complainant's alleged vengeful purpose, defendant may not now claim that the initial references impermissibly prejudiced him (see, People v Hayes, 175 A.D.2d 13, 14, lv denied 78 N.Y.2d 1011). Further, the People properly elicited evidence to counter defendant's claim that the complainant "set him up", by introducing testimony that defendant was transferred from one prison unit to another in the general course of business, and not as a result of the complainant's alleged vengeful purpose (see, People v Tarsia, 50 N.Y.2d 1, 8).
The prosecutor's summation comments regarding the uncharged crime constituted fair comment on the evidence and appropriate response to the defense summation.
Concur — Ellerin, J.P., Kupferman, Ross, Asch and Tom, JJ.