People v. Simelton

Judgment of the Supreme Court, New York County (Robert Haft, J.), rendered on September 8, 1987, convicting defendant, after a jury trial, of robbery in the first degree, robbery in the second degree and burglary in the first degree and sentencing him, as a second felony offender, to three concurrent indeterminate terms of from 5 to 10 years’ imprisonment, unanimously affirmed.

The defendant, a former close friend of the complainant, gained access to complainant’s apartment, where defendant’s accomplice then savagely pistol-whipped the complainant before both defendant and the accomplice stole various items of personal property.

Defendant’s challenge to the prosecutor’s comments during cross-examination and in the summation are unpreserved as a matter of law. (CPL 470.05 [2]; People v Balls, 69 NY2d 641.) Were we to consider them, in the interest of justice, we would nonetheless find them to be without merit since the prosecutor’s comments were made in direct response to defense attacks on the credibility of the complainant and since the prosecutor’s comments did not exceed the broad bounds of rhetorical comment permissible in closing argument. (People v Galloway, 54 NY2d 396, 399.)

In any event, in view of the overwhelming evidence of defendant’s guilt, any errors were harmless. (People v Crimmins, 36 NY2d 230, 237.)

Concur — Murphy, P. J., Sullivan, Carro and Milonas, JJ.