March 26, 1991
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
The prosecutor, in his summation, stated that the transit police officer's testimony was "credible and plausible", and commented that the officer was "trained" to observe criminal conduct, and was not a mere "casual observer". In the absence of objection, the present contention that the prosecutor improperly vouched for the witness's credibility is not preserved for appellate review (CPL 470.05; People v Tardbania, 72 N.Y.2d 852). In any event, the record plainly indicates the prosecutor's challenged remarks were not an expression of opinion (cf., People v Lovello, 1 N.Y.2d 436), but rather, a proper argument based upon the trial evidence (People v Rodriguez, 159 A.D.2d 356, lv denied 76 N.Y.2d 795). Moreover, the statements were a fair response to those of defense counsel who characterized the transit officer's testimony as, among other things, inaccurate and incorrect (see, People v Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912). Even assuming the prosecutor's comments to be improper, any error was harmless in view of the overwhelming evidence of defendant's guilt (see, People v Crimmins, 36 N.Y.2d 230).
Defendant has also failed to preserve his argument that the court, by its charge, diminished the People's burden of proof when it stated that defendant is entitled to an inference of nonguilt where facts proven at trial yield both inferences of guilt and nonguilt. We observe that the charge, viewed as a whole (see, People v Kurtish, 165 A.D.2d 670, lv denied 76 N.Y.2d 1022), adequately conveyed the appropriate standard of proof to the jury, in that the jurors were repeatedly instructed that the People were required to prove defendant's guilt beyond a reasonable doubt.
Concur — Murphy, P.J., Rosenberger, Wallach and Asch, JJ.