| People v Cephas |
| 2012 NY Slip Op 00223 [91 AD3d 668] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Cephas, Appellant. |
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Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered January 20, 2010, convicting him of murder in the second degree, aggravated criminalcontempt, criminal possession of a weapon in the second degree, and criminal possession of aweapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court submitted the charge of murder in the second degree (see PenalLaw § 125.25 [1]) to the jury and, in the alternative, the lesser-included offense ofmanslaughter in the first degree (see Penal Law § 125.20 [1]). The Supreme Courtdenied the defendant's request to charge manslaughter in the second degree (see PenalLaw § 125.15 [1]). The jury found the defendant guilty of, inter alia, murder in the seconddegree. Where, as here, "a court charges the next lesser included offense of the crime alleged inthe indictment, but refuses to charge lesser degrees than that . . . the defendant'sconviction of the crime alleged in the indictment forecloses a challenge to the court's refusal tocharge the remote lesser included offenses" (People v Boettcher, 69 NY2d 174, 180[1987]; see People v Green, 5 NY3d538, 545 [2005]; People vIrizarry, 88 AD3d 1013 [2011]). "Thus, review of the defendant's challenge to the[Supreme] Court's refusal to charge manslaughter in the second degree as a lesser-includedoffense of murder in the second degree is foreclosed by the jury verdict finding him guilty ofmurder in the second degree, the crime alleged in the indictment, and its implicit rejection of thelesser-included offense of manslaughter in the first degree" (People v Gorham, 72 AD3d 1108, 1109 [2010]; see People vJohnson, 87 NY2d 357, 361 [1996]; People v Irizarry, 88 AD3d at 1013; People v Alston, 77 AD3d 762[2010]).
The defendant contends that certain remarks by the prosecutor during summation deprivedhim of a fair trial because the prosecutor improperly conflated the law regarding the defense ofextreme emotional disturbance (see Penal Law § 125.25 [1] [a]) and the law ofjustification, a defense which the defendant did not raise. To the extent that the prosecutormisstated the law, her comments could not have been interpreted by the jury as an instruction onthe law because the court reminded the jury that it would define the law and subsequently gave acorrect instruction on the law of extreme emotional disturbance (see People v Giuca, 58 AD3d 750,751 [2009]). Thus, the defendant was [*2]not prejudiced by theprosecutor's comments.
The defendant's remaining contentions regarding certain remarks by the prosecutor in heropening statement and summation are unpreserved for appellate review, and we decline to reviewthem in the exercise of our interest of justice jurisdiction.
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel, since the record as a whole demonstrates that he received meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d137, 147 [1981]). Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur.