People v. Toledo , 548 N.Y.S.2d 892 ( 1989 )

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered April 14, 1988, convicting defendant, after a jury trial, of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20), and sentencing him, as a predicate felon, to an indeterminate term of imprisonment of from 1 Vi to 3 years, unanimously affirmed.

The contention of defendant that he was deprived of due process because of the prosecutor’s remarks in summation is not preserved as a matter of law and we, therefore, decline to reach it. Were we to consider it in the interest of justice, we would nonetheless affirm, finding it to be without merit. The prosecutor’s comments were justified as a response to defense counsel’s remarks. (People v Galloway, 54 NY2d 396.) Further, any possible error was harmless in light of the overwhelming proof of guilt. (People v Crimmins, 36 NY2d 230.) Concur— Kupferman, J. P., Asch, Kassal, Wallach and Rubin, JJ.