| People v Martinez |
| 2010 NY Slip Op 00706 [69 AD3d 958] |
| January 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HugoMartinez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Robbins, J.),rendered November 27, 2006, convicting him of murder in the second degree, criminalpossession of a controlled substance in the fifth degree, and manslaughter in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The County Court did not improvidently exercise its discretion in denying the defendant'smotion pursuant to CPL 200.20 (3) to sever the charges under the first and third counts of theindictment, which arose from separate incidents on separate dates. Contrary to the defendant'scontention, he failed to demonstrate that there was substantially more proof of one incident, ascompared to the other, and that there was a substantial likelihood that the jury would be unableto consider separately the proof as it related to each incident (see CPL 200.20 [3] [a];People v Cox, 298 AD2d 461 [2002]). Further, there is nothing in the record indicatingthat the jury was unable to separately consider the discrete charges (see People v Smith,64 AD3d 619, 620 [2009]; People v Montalvo, 34 AD3d 600, 601 [2006]; People vBerta, 213 AD2d 659, 660 [1995]).
The defendant's contention that certain remarks made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review, as he failed to object to thesubject remarks (see CPL 470.05 [2]; People v Charles, 57 AD3d 556 [2008]). Inany event, "[t]o the extent that the prosecutor may have exceeded the bounds of permissiblerhetorical comment, any error was harmless" (People v Carter, 36 AD3d 624 [2007];see People v Crimmins, 36 NY2d 230, 242 [1975]).
The defendant was not deprived of the effective assistance of counsel, as the record revealsthat defense counsel provided meaningful representation (see People v Benevento, 91NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]). Skelos, J.P., Balkin, Leventhaland Lott, JJ., concur.