People v. Bailey

159 A.D.2d 628 | N.Y. App. Div. | 1990

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered December 20, 1988, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).

The prosecutor’s comment in his summation on the defendant’s exercise of his constitutional right to remain silent had the potential for prejudice (see, People v Kent, 125 AD2d 590, 591; People v Von Werne, 41 NY2d 584). However, the risk of any such prejudice was dissipated by the court’s prompt curative instruction and subsequent charge to the jury (see, People v Berg, 59 NY2d 294, 299-300; People v Thomas, 147 AD2d 725).

We have considered the defendant’s remaining contentions and find them to be unpreserved for appellate review or without merit. Kunzeman, J. P., Kooper, Sullivan and Miller, JJ., concur.