People v. Gardner

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered March 3, 2004, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence.

*483Ordered that the judgment is affirmed.

The defendant failed to timely object to the prosecutor’s allegedly improper remarks during the opening statement, did not object to a curative instruction given by the trial court, and did not request a mistrial. As a result, the defendant did not preserve for appellate review his contention that certain comments made by the prosecutor during the opening statement deprived him of a fair trial (see People v Cunningham, 222 AD2d 727, 730 [1995]; People v Rizzo, 175 AD2d 221, 222 [1991]).

In any event, even assuming the prosecutor’s remarks were improper, the trial court’s prompt, sua sponte, curative instruction minimized any possible prejudice arising from the prosecutor’s remarks (see People v Alvarez, 304 AD2d 313 [2003]; People v Wellington, 267 AD2d 56, 57 [1999]). Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.