Appeal from a judgment of the County Court of Broome County (Coutant, J.), rendered November 29, 1984, upon a verdict convicting defendant of the crime of scheme to defraud in the first degree.
On or about September 13, 1983, defendant and his wife opened a joint checking account at a branch bank in the City of Binghamton. An initial deposit of $300 was made at that time but ho subsequent deposits were ever made. Within the first day or two a withdrawal of $100 was made. Over the course of the next few days, the entire balance of the account was exhausted by three checks, two issued by defendant and one by his wife. From approximately the third week of September 1983, an additional 38 checks were written against the account, 17 by defendant and 21 by his wife. None of defendant’s bad checks were ever made good. Defendant’s own first two checks plus the $100 early withdrawal totaled over $330, which would have at that point exhausted the account.
Defendant was convicted after trial of the crime of scheme to defraud in the first degree and sentenced to a term of 2 to 4 years’ imprisonment. This appeal ensued.
The only issue raised on this appeal is that remarks by the prosecutor in summation were so improper and prejudicial as to deny defendant his constitutional right to a fair trial. To the extent this argument has been preserved for our review, we find that County Court properly denied defendant’s claim of prejudicial error. The jury was properly instructed that the comments of the prosecutor in summation were not evidence. The remarks of the prosecutor were fair comment in response to defense counsel’s arguments in summation, the issues in the case and the evidence. The judgment should therefore be affirmed.
Judgment affirmed. Mahoney, P. J., Main, Casey, Mikoll and Harvey, JJ., concur.