| People v McDonald |
| 2010 NY Slip Op 09153 [79 AD3d 771] |
| December 7, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JeromeMcDonald, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Ayelet Sela ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.),rendered May 14, 2004, convicting him of attempted robbery in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is without merit. Most of the challenged remarks were responsive todefense counsel's summation (see People v Halm, 81 NY2d 819, 821 [1993]; People v Williams, 52 AD3d 851[2008]; People v Barnes, 33 AD3d811 [2006]; People v Farrell, 228 AD2d 693 [1996]; People v Campbell, 228AD2d 689 [1996]; People v Jefferson, 136 AD2d 655, 657 [1988]). Although some of thecomments made reference to matters outside the "four corners of the evidence" (People vAshwal, 39 NY2d 105, 109 [1976]), any prejudice that may have resulted therefrom wasalleviated when the trial court sustained the defendant's objections and provided curative instructions tothe jury (see People v Wiggins, 31 AD3d584 [2006]; People v Williams, 14AD3d 519 [2005]). Moreover, although some of the challenged remarks improperly denigrateddefense counsel (see People v Gordon,50 AD3d 821, 822 [2008]; People vPagan, 2 AD3d 879, 880 [2003]; People v Ortiz, 125 AD2d 502, 503 [1986];People v Torres, 111 AD2d 885 [1985]), they did not deprive the defendant of a fair trial.
Furthermore, contrary to the defendant's contention, defense counsel's performance was notrendered ineffective because she failed to retain and call an expert witness on the topic of eyewitnessidentifications. Under the circumstances of this case, counsel's decision to attack the reliability of theeyewitness identification through cross-examination was a legitimate trial tactic which should not besecond-guessed (see People v Daniels,35 AD3d 495, 496 [2006]; People v Baston, 181 AD2d 786, 787 [1992]; People vDiaz, 131 AD2d 775 [1987]; cf. Matterof Stephone M.H., 11 AD3d 464, 465 [2004]).
The defendant's remaining contention does not require reversal. Prudenti, P.J., Dillon, Balkin andChambers, JJ., concur.