People v. Staples

Feb 3, 1995
Versions:212 A.D.2d 1052
623 N.Y.S.2d 442
1995 N.Y. App. Div. LEXIS 1948

—Judgment unanimously affirmed. Memorandum: The contention that the prosecutor improperly commented during summation on defendant’s failure to testify was not preserved for review (see, CPL 470.05 [2]; People v Dien, 77 NY2d 885, 886). We decline to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). In any event, the contention is without merit. The prosecutor’s comment that certain testimony is "unchallenged” does not constitute a *1053comment on defendant’s failure to testify (see, People v Watson, 188 AD2d 315, Iv denied 81 NY2d 849).

By asking this Court to disregard that portion of his brief pertaining to the issue raised on his CPL 440.10 motion, defendant abandoned his remaining contention that he was denied effective assistance of counsel. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.—Robbery, 1st Degree.) Present—Denman, P. J., Lawton, Wesley, Balio and Boehm, JJ.