People v. Barry
125 A.D.2d 581
| N.Y. App. Div. | 1986

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Schneier, J.), rendered March 12, 1985, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The arresting officer had independent probable cause to search the defendant since he observed the defendant holding a tightly wrapped paper bag in which could be distinguished the butt of a gun (see, People v Prochilo, 41 NY2d 759). Furthermore, contrary to the defendant’s assertion, we find that the testimony of the arresting officer at the hearing was not incredible as a matter of law (see, People v Miller, 124 AD2d 599; People v Africk, 107 AD2d 700; People v Garafolo, 44 AD2d 86).

In many instances, the defendant failed to properly preserve for appellate review his claims of prosecutorial misconduct by *582omitting to raise an objection or request further curative instructions during trial (see, People v Medina, 53 NY2d 951; People v Walters, 116 AD2d 757). In any event, although many of the prosecutor’s remarks departed from acceptable professional conduct, they did not deny the defendant a fair trial in light of the overwhelming evidence of his guilt (see, People v Galloway, 54 NY2d 396; People v Roopchand, 107 AD2d 35, affd 65 NY2d 837). Bracken, J. P., Niehoff, Eiber and Sullivan, JJ., concur.