| People v Brown |
| 2009 NY Slip Op 08296 [67 AD3d 1369] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DelamarBrown, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedNovember 6, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of two countsof murder in the second degree (Penal Law § 125.25 [1]), defendant contends that he wasdenied a fair trial by prosecutorial misconduct during the cross-examination of a defense witnessand on summation. Defendant failed to preserve that contention for our review (see People v Bankston, 63 AD3d1616 [2009]; People v Haynes,35 AD3d 1212, 1213 [2006], lv denied 8 NY3d 946 [2007]) and, in any event, it iswithout merit. The prosecutor properly attempted to impeach a defense witness whose testimonydiffered from his testimony as a prosecution witness in defendant's earlier trial, which resulted ina hung jury. The prosecutor's comments on summation were fair response to defense counsel'ssummation (see People v Halm, 81 NY2d 819, 821 [1993]; People v Seeler, 63 AD3d 1595,1596 [2009]). Defendant also failed to preserve for our review his contention that certain allegederrors by County Court deprived him of a fair trial (see CPL 470.05 [2]), and we declineto exercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
By failing to move for a trial order of dismissal, defendant failed to preserve for our reviewhis challenge to the legal sufficiency of the evidence (see People v Gray, 86 NY2d 10,19 [1995]). In any event, that challenge lacks merit (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The testimony of the main prosecution witnesses was not incredible as amatter of law inasmuch as it was not "manifestly untrue, physically impossible, contrary toexperience, or self-contradictory" (People v Harris, 56 AD3d 1267, 1268 [2008], lv denied 11NY3d 925 [2009]; see People vWalker, 50 AD3d 1452, 1452-1453 [2008], lv denied 11 NY3d 795 [2008],reconsideration denied 11 NY3d 931 [2009]). Also, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). The credibility of the witnesses was an issue for the jury to determine, and weperceive no basis for disturbing that [*2]determination (see People v Massey, 61 AD3d1433 [2009], lv denied 13 NY3d 746 [2009]; People v Scott, 60 AD3d 1396, 1397 [2009], lv denied 12NY3d 821 [2009]).
Defendant contends that he was denied effective assistance of counsel based on defensecounsel's failure to object to the prosecutor's comments on summation and failure to move for atrial order of dismissal. We reject that contention, inasmuch as such an objection and motionwould have had no chance of success (see People v Caban, 5 NY3d 143, 152 [2005]; People v Francis, 63 AD3d 1644[2009]). Viewing the evidence, the law and the circumstances of this case in totality and as of thetime of the representation, we conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to preservefor our review his further contention that the court erred in its Ventimiglia ruling (seePeople v McClain, 250 AD2d 871, 872 [1998], lv denied 92 NY2d 901 [1998]), andwe decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Contrary to the contention of defendant, the court did not abuse its discretion in denying hisrequest for expert fees for an investigator inasmuch as he failed to establish that those fees werenecessary (see People v Koberstein, 262 AD2d 1032, 1033 [1999], lv denied 94NY2d 798 [1999]; People v Drumgoole, 234 AD2d 888, 889-890 [1996], lvdenied 89 NY2d 1011 [1997]; People v Barber, 154 AD2d 882 [1989], lvdenied 75 NY2d 810, 917 [1990]; see generally County Law § 722-c). Finally,the sentence is not unduly harsh or severe. Present—Centra, J.P., Fahey, Peradotto, Carniand Gorski, JJ.