The People of the State of New York, Respondent, v. Randall Peterson, Appellant

The People of the State of New York, Respondent, v Randall Peterson, Appellant. [MAJORITY] Judgment of the Supreme Court, Bronx County (John J. Reilly, J.), rendered on September 10, 1982, convicting the defendant, following a jury trial, of murder in the second degree and sentencing him to an indeterminate term of imprisonment of from 25 years to life, is affirmed. In view of the overwhelming proof of defendant’s guilt, the conduct of the prosecutor, while far from exemplary, was not sufficiently egregious to deprive defendant of a fair trial. (People v Johnson, 47 NY2d 785; People v Arce, 42 NY2d 179.) However, defendant’s claim of prosecutorial misconduct is not without foundation. The prosecutor’s behavior herein, which at times provoked admonitions from the court, was both reprehensible and unprofessional. His actions included throwing a piece of paper in the direction of the jury box, grimacing while defense counsel was addressing the jury, attempting to introduce prejudicial or other inadmissible evidence, arguing with defense witnesses and impermissibly endeavoring to attack their credibility, and improperly attempting to elicit testimony concerning defendant’s purported prior criminal activity and other alleged immoral conduct. If not for the court’s prompt action in providing curative instructions and generally sustaining defense objections, and particularly the strength of the evidence against defendant, a reversal would have been warranted. Concur — Kupferman, J. P., Sullivan, Asch, Milonas and Alexander, JJ.