People v. Campbell

unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant refused Supreme Court’s offer to give a curative instruction after the court denied defendant’s postsummation motion for a mistrial. Thus, defendant waived his contention that he was denied a fair trial by prosecutorial misconduct on summation (see, People v Restivo, 226 AD2d 1106 , Iv denied 88 NY2d 883 ; People v Lasage, 221 AD2d 1006 , Iv denied 88 NY2d 849 ). In any event, the conduct complained of was not so egregious as to require reversal (see, People v Tolliver, 217 AD2d 978 , Iv denied 86 NY2d 847 ).

The definite sentence of six months’ incarceration imposed upon defendant’s conviction of loitering in the first degree is illegal (see, Penal Law § 70.15 [2]), and thus we sentence defendant to a concurrent term of incarceration of three months on that count. (Appeal from Judgment of Supreme Court, Monroe County, Wisner, J. — Criminal Possession Controlled Substance, 3rd Degree.)

Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.