Opinion
Argued February 9, 1979
Decided April 5, 1979
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, STEPHEN SMYK, J.
Peter L. Yellin, Public Defender (James M. Zaccaria of counsel), for appellant.
Patrick D. Monserrate, District Attorney (Michael R. Wright of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Though the prosecutor's summation comment suggesting that the defendant may have engaged in other criminal conduct was prejudicial in nature, the Trial Judge's lucid curative instructions to the jury, following which neither any further objection nor any request for a mistrial was made, must be deemed to have corrected the error to the defendant's satisfaction.
The other prosecutorial summation statements to which defendant has drawn our attention went without objection at all. Consequently, they are not preserved for our review (CPL 470.05, subd 2; People v Utley, 45 N.Y.2d 908). Had the summation excesses assumed due process proportions depriving defendant of his constitutional right to a fair trial and had they been preserved, the harmless error doctrine, on which the Appellate Division relied, would, of course, have been inapplicable (see People v Crimmins, 36 N.Y.2d 230, 237-238; People v Savvides, 1 N.Y.2d 554).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur.
Order affirmed in a memorandum.