People v. Wade , 634 N.Y.S.2d 92 ( 1995 )

—Judgment, Supreme Court, New York County (Michael Obús, J.), rendered April 28, 1993, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years and 2½ to 5 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction for criminal possession of a weapon in the third degree and dismissing that count of the indictment, and otherwise affirmed.

Defendant’s claim that the prosecutor’s summation impermissibly referred to defendant’s decision not to testify by using the phrase "what is not at issue”, followed by a recitation of facts purportedly adduced at trial, is unpreserved for appellate review as a matter of law, and we decline to review it in the interest of justice. The one objection defendant made was to a claimed misstatement of the testimony, which was sustained and followed up with curative instructions to which defendant made no further protest. In any event, if we were to review the challenged comments in the interest of justice, we would find, first, that they were fair response to defense counsel’s own "what is not in issue” phraseology, serving to focus attention on disputed issues of facts, and second, that if improper, they were harmless in view of the overwhelming evidence of defendant’s guilt {People v Allen, 127 AD2d 840). Since both weapon counts involve the same weapon, we dismiss in the interest of justice the count of criminal possession of a weapon in the third degree {see, People v Medina, 202 AD2d 256, 257, Iv denied 83 NY2d 913). Concur—Rosenberger, J. P., Rubin, Kupferman, Asch and Williams, JJ.