| People v Green |
| 2008 NY Slip Op 01210 [48 AD3d 1245] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lavar L.Green, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered December 17, 2004. The judgment convicted defendant upon a jury verdict of, interalia, robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, robbery in the first degree (Penal Law § 160.15 [3]). Defendant failed topreserve for our review his contention that the evidence is legally insufficient to support theconviction (see People v Finger, 95 NY2d 894 [2000]; People v Gray, 86 NY2d10, 19 [1995]) and, in any event, that contention is without merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Although defendant also failed to preserve for ourreview his contention that he was deprived of a fair trial by prosecutorial misconduct duringsummation (see People v Wellsby,30 AD3d 1092 [2006], lv denied 7 NY3d 796 [2006]), we conclude in any event thatthe contention is without merit inasmuch as the prosecutor's comments were either a fairresponse to defense counsel's summation or were fair comment on the evidence (see People v Williams, 43 AD3d1336 [2007]; see generally People v Halm, 81 NY2d 819, 821 [1993]). In addition,defendant failed to preserve for our review his contention that Supreme Court erred in sentencinghim as a second violent felony offender (see People v Lawrence, 23 AD3d 1039, 1039-1040 [2005], lvdenied 6 NY3d 835 [2006]; Peoplev Sullivan, 4 AD3d 223 [2004], lv denied 2 NY3d 765 [2004]; see alsoPeople v Smith, 73 NY2d 961, 962-963 [1989]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see Lawrence,23 AD3d at 1040).
Contrary to the contention of defendant, he was not denied effective assistance of counselinasmuch as "the evidence, the law, and the circumstances of [this] case, viewed in totality and asof the time of the representation, reveal that [defense counsel] provided meaningfulrepresentation" (People v Baldi, 54 NY2d 137, 147 [1981]). The verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495), and the sentence is notunduly harsh or severe.
We have considered defendant's remaining contentions and conclude that they are [*2]without merit. Present—Scudder, P.J., Martoche, Smith,Green and Gorski, JJ.