The People of the State of New York, Respondent, v. Leon Shears, Appellant

The People of the State of New York, Respondent, v Leon Shears, Appellant. [MAJORITY] Judgment, Supreme Court, Bronx County (Fred W. Eggert, J.), rendered February 5, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a prison term of 2 to 6 years, unanimously affirmed. Defendant’s argument that the prosecutor’s summation deprived him of a fair trial is, for the most part, unpreserved and we decline to review it (CPL 470.05 [2]). Were we to review in the interest of justice, we would find that the challenged comments do not warrant a new trial in view of the overwhelming evidence of guilt, and in light of the defense summation. We have recently expressed disapproval of comments comparing the defense to a magician performing magic tricks (People v Torres, 171 AD2d 425, lv denied 77 NY2d 1001), and we would also remind prosecutors that they should avoid improper arguments suggesting that a witness testified in order to gain the jury’s sympathy (People v Rivera, 116 AD2d 371, 375). Concur — Sullivan, J. P., Milonas, Rosenberger, Ellerin and Kassal, JJ.