| People v Masaguilar |
| 2011 NY Slip Op 06039 [86 AD3d 619] |
| July 19, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Orlando Masaguilar, 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 (Sullivan, J.),rendered January 9, 2009, convicting him of attempted murder in the second degree, assault inthe first degree, menacing in the second degree, criminal possession of a weapon in the seconddegree, criminal use of a firearm in the first degree, and criminal possession of a controlledsubstance in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Although the Supreme Court should have granted the defendant's motion to sever the countcharging criminal possession of a controlled substance in the fourth degree from the remainingcounts (see CPL 200.20 [2] [a], [b]; People v Singson, 40 AD3d 1015, 1016 [2007]; People vCommuniello, 180 AD2d 809, 809-810 [1992]; People v Connors, 83 AD2d 640,640-641 [1981]), the error was harmless, as the evidence of the defendant's guilt wasoverwhelming, and there is no significant probability that the error contributed to the defendant'sconvictions (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People vSingson, 40 AD3d at 1016).
The defendant's challenges to the alleged instances of prosecutorial misconduct at trial and insummation are unpreserved for appellate review (see People v Muniz, 44 AD3d 1074 [2007]; People v Jenkins, 38 AD3d 566,567 [2007]). In any event, although some of the prosecutor's questions and comments oncross-examination of the defendant and in summation were improper, they constituted harmlesserror (see People v Crimmins, 36 NY2d at 241-242; People v Ortiz, 46 AD3d 580, 581 [2007]).
The defendant was not deprived of the effective assistance of counsel. Considering thetotality of the evidence, the law, and the circumstances of the case, trial counsel providedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]). Covello,J.P., Chambers, Lott and Miller, JJ., concur.