Opinion
October 2, 1986
Appeal from the Supreme Court, Kings County (Potoker, J.).
Judgment affirmed.
By failing to object to any aspect of the court's charge on the affirmative defense of extreme emotional disturbance, the defendant has not preserved for our review any issue of law with respect thereto (see, CPL 470.05; People v Malave, 114 A.D.2d 376). In any event, the charge given to the jury was proper (see, People v Patterson, 39 N.Y.2d 288, affd 432 U.S. 197). As to the defendant's additional contention that he established this defense at trial, thereby requiring that the guilty verdict be reduced from murder in the second degree to manslaughter in the first degree, we find that the determination of this question was properly left for the jury and see no reason to disturb its conclusion (see, People v Tabarez, 113 A.D.2d 461, 466; People v Lasalle, 105 A.D.2d 756). Nor was the defendant deprived of a fair trial by virtue of the prosecutor's conduct or certain remarks he made during his opening statement and summation. Most of the claimed improprieties have not been preserved for review as a matter of law (see, CPL 470.05; People v Hoard, 114 A.D.2d 644), and in any event, any errors were cured by the court's prompt curative instructions (see, People v Irby, 112 A.D.2d 447).
Finally, although, under the circumstances of this case, the People's expert medical witness should not have been permitted to testify that, in his opinion, the victim's death was "homicidal", no objection was raised with respect to this statement, and as there was overwhelming evidence from which to find the defendant guilty beyond a reasonable doubt, a new trial is not warranted in the interest of justice (see, People v Robbins, 278 App. Div. 592, affd 302 N.Y. 885; cf. People v Creasy, 236 N.Y. 205, 222). Bracken, J.P., Brown, Niehoff and Eiber, JJ., concur.