| People v Dashosh |
| 2009 NY Slip Op 01494 [59 AD3d 731] |
| February 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Donna Dashosh, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, andTerry-Ann Llewellyn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman,J.), rendered December 4, 2007, convicting her of assault in the second degree and leaving thescene of an incident without reporting, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting her convictionis unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492-493 [2008]; People v Finger, 95 NY2d 894, 895 [2000]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt.
The defendant's contentions that the prosecutor's summation remarks and line of questioningduring jury selection constituted reversible error because the prosecutor allegedly vouched forthe credibility of witnesses, testified as an unsworn witness, shifted the burden of proof, andinflamed the jury, are unpreserved for appellate review because the defense made only a generalobjection, failed to request curative instructions, and did not timely move for a mistrial on thesegrounds (see CPL 470.05 [2]; People v Balls, 69 NY2d 641, 642 [1986]; People v Salnave, 41 AD3d 872,874 [2007]; People v Wright, 5AD3d 873, 875 [2004]). In any event, the prosecutor's questions during jury selection werenot prejudicial or improper (see People v Jean, 75 NY2d 744, 745 [1989]). Moreover,the summation comments alleged to be prejudicial were all either fair comment on the evidence(see People v Ashwal, 39 NY2d 105 [1976]), responsive to arguments and theoriespresented in the defense summation (see People v Galloway, 54 NY2d 396 [1981]; People v Moore, 29 AD3d 825,825-826 [2006]), or harmless error (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Hill, 286 AD2d 777, 778 [2001]).
To the extent that the defendant's claim of ineffective assistance of counsel involves matterdehors the record, namely, defense counsel's failure to offer a certain report for admission intoevidence and the reason for counsel's waiver of a Huntley hearing (see People vHuntley, 15 NY2d 72 [1965]), it may not be reviewed on direct appeal (see People v Monroe, 52 AD3d623, 624 [2008]). To the extent that the claim may be reviewed, defense counsel providedmeaningful representation (see People v Satterfield, 66 NY2d 796, 798-799 [1985];People v Baldi, 54 NY2d 137, 146-147 [1981]). Defense counsel prepared and pursuedtrial strategies and defense theories, presented a clear and cogent summation, and adequatelycross-examined the People's witnesses to develop his defense theories. Hindsight does notelevate counsel's unsuccessful trial strategies to ineffective assistance of counsel (see Peoplev Benevento, 91 NY2d 708, 712 [1998]; People v Satterfield, 66 NY2d at 798-799;People v Baldi, 54 NY2d at 146-147).
The defendant's claim that the court erred in ruling on the admissibility of her profferedexpert testimony without holding a Frye hearing (see Frye v United States, 293 F1013 [1923]) is unpreserved for appellate review, as the record demonstrates that defendant didnot request such a hearing (see People v Angelo, 88 NY2d 217, 223 [1996]). In anyevent, because the defendant did not demonstrate that the findings of her proffered expert aregenerally accepted by the scientific community as reliable, the court did not err in excluding thistestimony (id. at 223; see People v Shedrick, 66 NY2d 1015, 1018 [1985]; Cumberbatch v Blanchette, 35 AD3d341, 342 [2006]).
The defendant's remaining contentions are without merit. Skelos, J.P., Ritter, Florio andMiller, JJ., concur.