The People of the State of New York, Respondent, v. Alex Gonzalez, Appellant

The People of the State of New York, Respondent, v Alex Gonzalez, Appellant. [610 NYS2d 817] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered February 11, 1992, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant failed to preserve for appellate review his objection to the prosecutor’s summation, because he failed to seek curative instructions or move for a mistrial (see, People v Nuccie, 57 NY2d 818; People v Acevedo, 156 AD2d 569; People v Coker, 135 AD2d 723; People v Richardson, 114 AD2d 980; People v Baldo, 107 AD2d 751). In any event, we find that the prosecutor’s comments made during summation did not deviate from the theory stated in the indictment so as to deprive the defendant of his due process right to a fair trial (see, e.g., People v Grega, 72 NY2d 489). The defendant’s objection to the court’s charge to the jury is also unpreserved for appellate review (see, People v Hoke, 62 NY2d 1022; People v Nuccie, supra, at 819; People v Udzinski, 146 AD2d 245). In any event, we find that the court’s charge adequately stated the applicable rule of law (see, People v Canty, 60 NY2d 830; People v Williams, 134 AD2d 636). Thompson, J. P., Santucci, Krausman and Florio, JJ., concur.