| People v Tisone |
| 2011 NY Slip Op 05535 [85 AD3d 1066] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Tisone, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Steinberg and Ilisa T.Fleischer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered March 24, 2010, convicting him of attempted robbery in the first degree, attemptedrobbery in the second degree, hindering prosecution in the second degree, and assault in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, he was not deprived of the effective assistance ofcounsel due to the existence of an alleged conflict of interest. To prevail on a conflict of interestbased claim of ineffective assistance of counsel, the defendant must show that "the conduct of hisdefense was in fact affected by the operation of the conflict of interest, or that the conflictoperated on the representation" (Peoplev Konstantinides, 14 NY3d 1, 10 [2009] [internal quotation marks omitted]; seePeople v Abar, 99 NY2d 406, 409 [2003]; People v Smart, 96 NY2d 793, 795[2001]; People v Ortiz, 76 NY2d 652, 657 [1990]). Here, the defendant did not make therequisite showing.
The defendant's contention that the cumulative effect of the improper admission of certainphotographs and the prosecutor's improper summation remarks deprived him of a fair trial andconstituted reversible error is without merit. Initially, his contention with respect to thephotographic evidence is unpreserved for appellate review to the extent that it pertains to theadmission of a photograph of a "Tec-9" handgun (see People v Arroyo, 59 AD3d 634, 634 [2009]; People v Clas, 54 AD3d 770, 770[2008]). In any event, "photographs are admissible if they tend 'to prove or disprove a disputed ormaterial issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprovesome other evidence offered or to be offered' " (People v Wood, 79 NY2d 958, 960[1992], quoting People v Pobliner, 32 NY2d 356, 369 [1973], cert denied 416 US905 [1974]). They should be excluded " 'only if [their] sole purpose is to arouse theemotions of the jury and to prejudice the defendant' " (People v Wood, 79 NY2d at 960,quoting People v Pobliner, 32 NY2d at 370). As the photographs in this case were notoffered for the sole purpose of arousing the emotions of the jury, the Supreme Court providentlyexercised its discretion in admitting them into evidence (see People v Sampson, 67 AD3d 1031, 1032 [2009]).
The defendant's contention regarding the prosecutor's summation remarks is unpreserved forappellate review because he failed to object to the subject remarks (see CPL 470.05 [2];People v Charles, 57 AD3d556, 556 [2008]; People vSiriani, 27 AD3d 670 [2006]). In any event, the challenged remarks were largely faircomment on the evidence adduced at trial or responsive to the defense counsel's summation(see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Jones, 76 AD3d 716, 717[2010]; People v Diaz, 59 AD3d459, 459-460 [2009]). Any error resulting from the remaining challenged remarks washarmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Smalls, 65 AD3d 708[2009]).
The defendant's remaining contentions are without merit. Skelos, J.P., Covello, Balkin andAustin, JJ., concur.