The People of the State of New York, Respondent, v. Julio Rosario, Appellant

The People of the State of New York, Respondent, v Julio Rosario, Appellant. [725 NYS2d 203] [MAJORITY] —Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered July 29, 1998, convicting defendant, after a jury trial, of criminal possession of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 2 to 6 years and 1 to 3 years, unanimously affirmed. The challenged portions of the People’s summation do not warrant reversal. The prosecutor did not make an actual “safe streets” argument, and the challenged comments were generally fair comment, on the evidence and reasonable inferences to be drawn therefrom, made in response to the defense summations (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). To the extent that the prosecutor, in a brief and isolated comment, mischaracterized the evidence, it did not rise to the level of depriving defendant of a fair trial. Since defendant withdrew his challenge to the court’s jury instruction on acting in concert, that claim is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the instruction as a whole properly conveyed the element of intent as applicable to the facts presented (see, People v Kaplan, 76 NY2d 140, 144-145). We have considered and rejected defendant’s remaining claims. Concur — Tom, J. P., Andrias, Ellerin, Wallach and Friedman, JJ.