| People v Williams |
| 2007 NY Slip Op 07138 [43 AD3d 1336] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert J.Williams, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered June7, 2005. The judgment convicted defendant, upon a jury verdict, of felony driving whileintoxicated, unlawful hunting of a deer with a spotlight, and unlawful taking of an antlerless deer.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict offelony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c][i]), unlawful hunting of a deer with a spotlight (ECL 11-0901 [4] [b] [2]), and unlawful takingof an antlerless deer (ECL 11-0907 [1] [a]). Contrary to the contention of defendant, the evidenceis legally sufficient to establish his identity as the shooter with respect to the unlawful hunting ofa deer with a spotlight and the unlawful taking of an antlerless deer (see People v Garrison, 39 AD3d1138, 1140 [2007], lv denied 9 NY3d 844 [2007]; People v Little, 23 AD3d 1117,1118 [2005], lv denied 6 NY3d 777 [2006]; People v Quinney, 305 AD2d 1044[2003], lv denied 100 NY2d 586 [2003]). Further, the verdict is not against the weight ofthe evidence with respect to those counts, nor is it against the weight of the evidence with respectto the count of felony driving while intoxicated (see People v Shank, 26 AD3d 812, 814 [2006]; People v Michalak, 26 AD3d 886[2006]; Quinney, 305 AD2d at 1044; see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant failed to preserve for our review his contention that he was deprived of a fair trialby prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Coleman, 32 AD3d 1239,1240 [2006], lv denied 8 NY3d 844 [2007]) and, in any event, that contention lacksmerit. The prosecutor's remarks constituted fair comment on the evidence or a fair response todefense counsel's summation (see Coleman, 32 AD3d at 1240; People v Diggs, 24 AD3d 1261[2005], lv denied 6 NY3d 812 [2006]; see generally People v Halm, 81 NY2d819, 821 [1993]). Also contrary to defendant's contention, the prosecutor's summation reaffirmedrather than diminished the People's burden of proof (see People v James, 289 AD2d 3[2001], lv denied 97 NY2d 755 [2002]). Inasmuch as we have concluded that there wasno prosecutorial misconduct, we further reject defendant's contention that defense counsel'sfailure to object to those alleged instances of prosecutorial misconduct constituted ineffectiveassistance of counsel (see generallyPeople v Taylor, 1 NY3d 174, [*2]176-178 [2003]). Inany event, upon our review of the record, we conclude that defense counsel provided meaningfulrepresentation to defendant over the course of the trial (see People v Anderson, 24 AD3d 460 [2005], lv denied 6NY3d 831 [2006]; see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Gorski, J.P., Smith, Centra, Fahey and Pine, JJ.