Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Suzanne J. Melendez, J.), rendered May 19, 2011. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se, driving while intoxicated (common law), and driving while ability impaired.

ORDERED that the judgment of conviction is affirmed.

Defendant, who was involved in a three-car accident on the Grand Central Parkway, was arrested by a police officer investigating the accident because the officer believed defendant was intoxicated. After a jury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]).

Defendant's sole contention on appeal—that several of the prosecutor's comments during summation were improper and, thus, a new trial is required—is unpreserved for appellate review, as defendant's counsel either failed to object to the prosecutor's remarks, or raised only general, one-word objections, without specifying the grounds therefor (see CPL 470.05 [2] People v Tonge, 93 NY2d 838, 839-840 [1999] People v Read, 97 AD3d 702, 703 [2012] People v Adams, 93 AD3d 734, 735 [2012] People v Paul, 82 AD3d 1267, 1267-1268 [2011] People v Gill, 54 AD3d 965, 966 [2008] People v Salnave, 41 AD3d 872, 874 [2007]). Defendant's motion for a mistrial was untimely and failed to preserve this contention, as the motion was made after the completion of summations (see People v Rodney, 96 AD3d 880 [2012] People v Adams, 93 AD3d at 735; People v Paul, 82 AD3d at 1268; People v Salnave, 41 AD3d at 874).

In any event, many of "the challenged remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom, permissible rhetorical comment, or responsive to the defense counsel's summation" (People v Chardon, 83 AD3d 954, 956 [2011] see People v Ashwal, 39 NY2d 105, 109-110 [1976]). The prosecutor's comments regarding the veracity of the arresting officer and his demeanor during cross-examination were a fair response to the defense summation, which accused the officer of lying (see People v Rogers, 106 AD3d 1029, 1030 [2013] People v Alexander, 255 AD2d 708, 710 [1998] People v Burgos, 186 AD2d 578 [1992] People v Stokes, 165 AD2d 763 [1990] People v Glenn, 140 AD2d 623 [1988]). Moreover, defendant's claim that the prosecutor's comments regarding what defendant did not say to the arresting officer constituted the improper use of defendant's pretrial silence against [*2]him, is without merit. As defendant chose to speak to the arresting officer, the prosecutor was permitted to comment on any significant omissions in defendant's statement to the officer (see People v Hendricks, 90 NY2d 956, 957 [1997] People v Savage, 50 NY2d 673, 678-679 [1980] People v Tucker, 87 AD3d 1077, 1079 [2011] People v Newton, 59 AD3d 982 [2009] People v Sierra, 21 AD3d 809, 810 [2005] People v Brockington, 126 AD2d 655, 657 [1987] cf. People v Conyers, 52 NY2d 454 [1981]).

Furthermore, under the circumstances of this case, to the extent that the prosecutor's comments during summation were improper, they "were harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the errors contributed to [his] conviction" (People v Aziziandavidi, 100 AD3d 765, 766 [2013] see People v Arafet, 13 NY3d 460, 467 [2009] People v Rodney, 96 AD3d at 880).

Accordingly, the judgment of conviction is affirmed.

Aliotta and Solomon, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to reverse the judgment of conviction and remit the matter to the Criminal Court for a new trial in the following memorandum:

In my opinion, the prosecutor's summation was replete with improper remarks which were neither responsive to defense summation (cf. People v Galloway, 54 NY2d 396 [1981]) nor fair comment on the evidence (cf. People v Campbell, 271 AD2d 692 [2000]). Although some of the remarks were made without objection, I would nonetheless consider them in the interest of justice (see CPL 470.15 [3] [c], [6] [a]).

It is well settled that a defendant has " the constitutional right to remain silent at the time of his [or her] arrest (NY Const, art I, § 6; US Const 5th Amend) and his [or her] exercise of that right at or after his [or her] arrest cannot be used by the People as part of their direct case' " (People v McArthur, 101 AD3d 752, 752 [2012], quoting People v Basora, 75 NY2d 992, 993 [1990]). " [A]n individual's pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth while the risk of prejudice is substantial' " (People v McArthur, 101 AD3d at 752, quoting People v Tucker, 87 AD3d 1077, 1078 [2011] [internal quotation marks omitted]). Thus, " the State is denied the right to draw adverse inferences from the fact that a defendant has maintained an effective silence, even if something less than total' " (People v McArthur, 101 AD3d at 753, quoting People v Tucker, 87 AD3d at 1079 [internal quotation marks omitted]).

Here, throughout his summation, the prosecutor impermissibly referred to defendant's pretrial silence as evidence of his guilt. The prosecutor persistently urged the jury to infer defendant's guilt based on his failure to deny—either at the scene or during his statement at the precinct—driving the vehicle. Specifically, the prosecutor commented that if defendant had not been driving, he would have said so on his videotaped statement instead of "why did you let the other driver go." The prosecutor proceeded to remark that when defendant was told the results of the intoxilyzer, he "goes all right, like you got me, he doesn't say I wasn't driving, he didn't say I'm not drunk." Such comments not only disparaged defendant for exercising his constitutional right to be silent, but were highly prejudicial in this case where defendant elected not to present any evidence on his behalf and where proof of his guilt rested almost exclusively on the arresting officer's credibility. Indeed, the prosecutor compounded these errors by repeatedly vouching for the arresting officer's credibility, at one point shifting the burden to defendant to "prove[]" that the arresting officer had a motive to lie. In addition to shifting the burden to the defense, the prosecutor engaged in a pattern of other egregious remarks, including denigrating the defense by calling it "insulting," and encouraging the jurors to draw an inference of guilt based on the silence of other people at the scene.

To the extent the majority relies on People v Savage (50 NY2d 673 [1980]) and its progeny to conclude that the prosecutor was entitled to comment on defendant's omissions from his post-Miranda, pretrial statement to police, the majority's reliance on those cases is misplaced. In most of those cases, the defendants chose to testify at trial, thereby placing their credibility at [*3]issue. Here, however, defendant did not testify on his own behalf. Instead, defendant merely gave a statement to police that he "shared a half pint of Jim Beam." The fact that defendant did not "give a more complete exculpatory statement to the police may simply [have been] attributable to his awareness that he [was] under no obligation to speak to the police" (People v Tucker, 87 AD3d at 1080 [internal quotation marks omitted]).

On this record, I conclude that the cumulative effect of the prosecutor's remarks served to deprive defendant of his right to a fair trial. The proof of defendant's guilt was not overwhelming, but rather turned on the jury's assessment of the police officer's credibility, which was seriously undermined by the many errors contained in the police report, as well as the inconsistencies between the officer's hearing and trial testimony. Contrary to his trial testimony, the officer admitted that he had previously reported that he had not seen defendant operate the vehicle. He further admitted that, at the suppression hearing, he testified that he did not see the driver of the vehicle, nor did he see defendant exit the driver's side of the vehicle. Such admissions cast significant doubt upon defendant's guilt, especially where the officer acknowledged that there had been someone else in the vehicle who was taken away at the scene. Against this backdrop, I cannot conclude that the prosecutor's comments were harmless (People v Ostrow, 12 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, I vote to reverse the judgment of conviction and remit the matter to the Criminal Court for a new trial.
Decision Date: April 04, 2014