| People v Muniz |
| 2007 NY Slip Op 08256 [44 AD3d 1074] |
| October 30, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ricardo Muniz, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Jennifer Etkin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.),rendered June 30, 2005, convicting him of criminal possession of stolen property in the fourthdegree and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the prosecutor improperly exceeded the scope of a priorevidentiary ruling by asking the arresting officer whether he had been disciplined as a result of anInternal Affairs Division (hereinafter IAD) investigation. However, the court sustained anobjection to this question, and immediately instructed the jury to disregard the arresting officer'sanswer.
Since the defendant neither requested further curative instructions nor moved for a mistrial,his present contention is unpreserved for appellate review (see People v Heide, 84 NY2d943, 944 [1994]; People v Medina, 53 NY2d 951, 952 [1981]; People v Billups,41 AD3d 492 [2007]; People v Bermudez, 36 AD3d 928 [2007], lv denied 8NY3d 944 [2007]; People v Lewis, 34 AD3d 599 [2006]). In any event, the court'scurative instruction was sufficient to dispel any prejudice to the defendant (see People vArroyo, 162 AD2d 359 [1990]).
Furthermore, the defendant's claim that the prosecutor also exceeded the scope of the subjectevidentiary ruling during the questioning of a second police witness is without merit. Thechallenged question as to whether the IAD investigation was still pending was within the scopeof [*2]the ruling.
The defendant's argument that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is unpreserved for appellate review. The defendant failed to objectto some of the challenged remarks, or, when an objection was made and sustained, failed torequest further instructions or move for a mistrial after the court issued a curative instruction(see People v Heide, 84 NY2d at 944; People v Salnave, 41 AD3d 872 [2007];People v Bermudez, 36 AD3d 928 [2007], lv denied 8 NY3d 944 [2007];People v Gillespie, 36 AD3d 626 [2007], lv denied 8 NY3d 984 [2007]). In anyevent, the challenged remarks constituted fair response to comments made during the defensecounsel's summation, or fair comment on the evidence (see People v Salnave, 41 AD3d872 [2007]; People v Tatum, 39 AD3d 571 [2007]; People v Bermudez, 36 AD3d928 [2007], lv denied 8 NY3d 944 [2007]; People v Gillespie, 36 AD3d 626[2007], lv denied 8 NY3d 984 [2007]; People v Barnes, 33 AD3d 811 [2006]).Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur.