| People v Foster |
| 2009 NY Slip Op 00870 [59 AD3d 1008] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AnthonyFoster, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered March 29, 2005. The judgment convicted defendant, upon a jury verdict, of murder inthe second 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 ofmurder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant's contention,Supreme Court properly refused to suppress evidence obtained as the result of eavesdroppingwarrants. The information submitted by the police in support of the eavesdropping warrantapplications, "tested in a practical and commonsense fashion in the context of the objectives ofthe investigation" (People v Hafner, 152 AD2d 961, 962 [1989]), contained a sufficient"showing that normal investigative procedures have been tried and have failed, or reasonablyappear to be unlikely to succeed if tried" (CPL 700.15 [4]). One objective of the eavesdroppingwarrants was to ascertain defendant's location, and the police officer's supporting affidavit setforth in detail the resistance of defendant's known associates in cooperating with the police(see People v Palmeri, 272 AD2d 968, 969 [2000], lv denied 95 NY2d 967[2000]; Hafner, 152 AD2d at 962), as well as the ineffectiveness of the surveillancemethods previously employed (see Hafner, 152 AD2d at 962; People v Quezada,145 AD2d 950 [1988]; People v Baris, 116 AD2d 174, 187 [1986], lv denied 67NY2d 1050 [1986]). We also reject the contention of defendant that he was denied a fair trial byprosecutorial misconduct on summation. The prosecutor's comments during summation, viewedin light of defense counsel's summation, were "within the bounds of fair response to the defensecounsel's attack on the credibility of the [prosecution] witnesses" (People v Farrell, 228AD2d 693, 694 [1996], lv denied 88 NY2d 984 [1996]; see People v Melendez, 11 AD3d983, 984 [2004], lv denied 4 NY3d 888 [2005]). In any event, those comments didnot amount to a " 'deliberate and pervasive pattern of prosecutorial misconduct' " (People vDombrowski, 163 AD2d 873, 875 [1990]). Present—Martoche, J.P., Fahey, Green,Pine and Gorski, JJ.