February 10, 2000
Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered June 18, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.
Ginger Suzan James, for respondent.
Robert Mauer, for defendant-appellant.
SULLIVAN, J.P., MAZZARELLI, ELLERIN, LERNER, FRIEDMAN, JJ.
Defendant's challenge to the court's isolated negative remark concerning a defense witness is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the remark, while ill-advised, was rendered harmless by the court's subsequent instructions (see,People v. Diaz, 189 A.D.2d 574, 575).
The court properly exercised its discretion in denying defendant's belated motion for a mistrial based upon the prosecutor's comments in his summation responding to certain arguments made in the defense summation. The court had sustained defendant's single objection made during the prosecutor's summation, and the remarks did not deprive him of a fair trial and must be viewed in the context of the accusations in the defense summation (see, People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.