People v. Sperling — 272 A.D.2d 419

Majority

p. 419

The People of the State of New York, Respondent, v Eric Sperling, Appellant.

[707 NYS2d 360]

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered February 25, 1999, convicting him of burglary in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s present claim that various comments made by the prosecutor during summation constituted reversible error is unpreserved for appellate review (see, CPL 470.05 [2]; People v Medina, 53 NY2d 951 , 953; People v Williams, 232 AD2d 669 ; People v Burrell, 178 AD2d 422 ). In any event, the prosecutor’s remarks were fair comment on the evidence or fair response to the comments that defense counsel made during summation (see, People v Patrona, 232 AD2d 432 ).

p. 420

Although it was improper for the prosecutor to cross-examine the defendant regarding a criminal charge of which he had been acquitted (see, People v Schwartzman, 24 NY2d 241 , 250; People v Booker, 134 AD2d 949 ; People v Francis, 112 AD2d 167 , 168), here, the error was harmless (see, People v Schwartzman, supra, 24 NY2d, at 250 ).

The defendant’s remaining contention is unpreserved for appellate review. Thompson, J. P., Friedmann, Florio and Smith, JJ., concur.

Cases cited

People v. Medina 53 NY2d 951 N.Y. 1981-06-02 at 953 p. 419
People v. Williams 232 AD2d 669 N.Y. App. Div. 1996-10-28 p. 419
People v. Burrell 178 AD2d 422 N.Y. App. Div. 1991-12-02 p. 419
People v. Schwartzman 24 NY2d 241 N.Y. 1969-03-06 at 250 p. 420
People v. Booker 134 AD2d 949 N.Y. App. Div. 1987-11-10 p. 420