People v Samuel Gardner

People v Gardner 2006 NY Slip Op 01638 [27 AD3d 482] March 7, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 17, 2006

The People of the State of New York, Respondent,
v
Samuel Gardner, Appellant.

—[*1]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered March 3, 2004, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant failed to timely object to the prosecutor's allegedly improper remarks during the opening statement, did not object to a curative instruction given by the trial court, and did not request a mistrial. As a result, the defendant did not preserve for appellate review his contention that certain comments made by the prosecutor during the opening statement deprived him of a fair trial (see People v Cunningham, 222 AD2d 727, 730 [1995]; People v Rizzo, 175 AD2d 221, 222 [1991]).

In any event, even assuming the prosecutor's remarks were improper, the trial court's prompt, sua sponte, curative instruction minimized any possible prejudice arising from the prosecutor's remarks (see People v Alvarez, 304 AD2d 313 [2003]; People v Wellington, 267 AD2d 56, 57 [1999]). Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.