Torts · MBE-tested
The People of the State of New York, Respondent, v. Erik Pivnick, Appellant
277 A.D.2d 1000716 N.Y.S.2d 346·New York Supreme Court, Appellate Division·2000·NY
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Opinion
The People of the State of New York, Respondent, v Erik Pivnick, Appellant.
[716 NYS2d 346]
[MAJORITY]
—Judgment unanimously affirmed. Memorandum: Defendant contends that he was denied a fair trial when the prosecutor improperly commented during summation on defendant’s failure to testify. Defendant objected to the comment and moved for a mistrial. Supreme Court sustained the objection and immediately instructed the jury to disregard the prosecutor’s comment, and there was no further objection by defendant. During its charge, the court further instructed the jury at defendant’s request that no unfavorable inference may be drawn from defendant’s failure to testify. Contrary to defendant’s contention, the court’s curative instructions were sufficient to correct the error. “It is presumed that the jury followed the trial court’s curative instructions * * * and as defendant raised no further objection, he has waived appellate review” (People v Brown, 174 AD2d 370, 371, lv denied 78 NY2d 1009; see, People v Heide, 84 NY2d 943, 944; People v Williams, 46 NY2d 1070, 1071; People v Reid, 140 AD2d 639, 640-641, lv denied 72 NY2d 961). (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Assault, 1st Degree.) Present — Pine, J. P., Wisner, Scudder and Kehoe, JJ.