Opinion
December 15, 1998
Appeal from the Supreme Court, Bronx County (Harold Silverman, J.).
Defendant's claims of prosecutorial misconduct in summation were not preserved for appellate review by defendant's belated motion for a mistrial made at the conclusion of summations ( People v. Molina, 242 A.D.2d 453, lv denied 91 N.Y.2d 895), and we decline to review them in the interest of justice. Were we to review the comments in question, including the characterization of defendant as a "business person" involved in running a "business", we would find them properly responsive to defense arguments and constituted fair comment on the evidence presented within the broad bounds of rhetorical comment ( see, People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976).
Contrary to defendant's contention, the court did not charge the jury that the officer had identified defendant as the seller. The charge conveyed to the jury the proper standards ( People v. Coleman, 70 N.Y.2d 817), and made it sufficiently clear that all factual issues relating to identification were questions for the jury to decide.
The readback of the arresting officer's testimony, in response to the jury's request, was meaningful under the circumstances. The court's interpretation of the jury note was logical, and, following the readback, the court instructed the jurors to inform it if they wished additional readback.
Concur — Lerner, P. J., Sullivan, Milonas, Rosenberger and Ellerin, JJ.