PEOPLE v. SPRINKLE

The trial court's curative instructions, given at the request of defense counsel, in connection with the prosecutor's inaccurate summary of a portion of the testimony, and regarding a comment that might have been construed as shifting the burden of proof, served to eliminate any prejudice to defendant. It is presumed that the jury understood and followed those instructions ( People v Davis, 58 N.Y.2d 1102, 1104).

The defense summation urged the jury to accept a version of the events herein that was unsupported by trial evidence. In such circumstances, the prosecutor in summation could properly characterize the argument as absurd ( see, People v Jones, 162 A.D.2d 204, lv denied 76 N.Y.2d 859). Defendant's claim that certain of the prosecutor's other comments in summation might have suggested an uncharged crime is unpreserved by appropriate and timely objection (CPL 470.05). In any event, the comments were responsive to the defense summation ( People v Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912), and the trial court's final instructions prevented any prejudice to defendant. In all other respects, the prosecutor's summation constituted fair comment on the evidence ( People v Galloway, 54 N.Y.2d 396).

Concur — Sullivan, J.P., Ellerin, Ross, Nardelli and Tom, JJ.