People v. Smith ( 1992 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered August 11, 1987, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). The evidence overwhelmingly established that the defendant, acting in concert with another, robbed the complainant of his radio and money.

We reject the defendant’s contention that he was denied a fair trial by reason of the cumulative prejudicial effect of prosecutorial and judicial misconduct. To the extent that the prosecutor’s conduct was improper, we find that in all but one instance the court’s action in sustaining defense counsel’s objections thereto and/or in issuing curative instructions to the jury effectively eliminated any prejudice to the defendant (see, People v Santiago, 52 NY2d 865). In light of the overwhelming evidence of the defendant’s guilt the remaining instance of misconduct was not so egregious as to have deprived the defendant of a fair trial.

The defendant’s contentions regarding the court’s charge on reasonable doubt are unpreserved for appellate review (see, People v Nuccie, 57 NY2d 818) and in any event are without merit (see, People v Canty, 60 NY2d 830). Mangano, P. J., Bracken, Pizzuto and Santucci, JJ., concur.