| People v Floyd |
| 2012 NY Slip Op 05756 [97 AD3d 837] |
| July 25, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamelFloyd, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch, Yael V. Levy,and Sarah S. Rabinowitz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins,J.), rendered June 11, 2010, convicting him of burglary in the first degree, burglary in the seconddegree, tampering with physical evidence, and endangering the welfare of a child, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of a fair trial because the prosecutor'ssummation comments regarding his failure to call certain witnesses in support of his alibi defenseimpermissibly shifted the burden of proof. However, since the defendant made only a singlegeneral objection to the comments now alleged to have been improper, his contention isunpreserved for appellate review (seePeople v Romero, 7 NY3d 911, 912 [2006]; People v Stewart, 89 AD3d 1044, 1045 [2011]; People v Brooks, 89 AD3d 746,747 [2011]; People v West, 86AD3d 583, 584 [2011]). In any event, where, as here, a defendant elects to present evidenceof his innocence, his failure to call significant witnesses in support of his defense may be broughtto the jury's attention by the prosecutor, provided that the prosecutor's comments are not made inbad faith and are merely efforts to persuade the jury to draw inferences supporting the People'sposition (see People v Tankleff, 84 NY2d 992, 994-995 [1994]; People v Gross, 78 AD3d 1196[2010]; People v Williams, 13AD3d 660 [2004]). Contrary to the defendant's contention, such comments do not constitutean impermissible attempt to shift the burden of proof (see People v Tankleff, 84 NY2d at994; People v Mingo, 83 AD3d869, 870 [2011]; People v Williams, 13 AD3d at 660; People v Rivera, 292AD2d 549 [2002]).
The defendant was not deprived of the effective assistance of counsel under the New YorkConstitution. Considering the totality of the evidence, the law, and the circumstances of the case,trial counsel provided meaningful representation (see People v Benevento, 91 NY2d 708,712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Grant, 94 AD3d 1139[2012]; People v Baugh, 91 AD3d965 [2012]). Further, the defendant was not deprived of the effective assistance of counselunder the United States Constitution (see Strickland v Washington, 466 US 668 [1984]).
The defendant's claim that the trial court failed to mark jury notes as court exhibits [*2]in violation of the procedure set forth by the Court of Appeals inPeople v O'Rama (78 NY2d 270, 277-278 [1991]) is unpreserved for appellate review(see People v Starling, 85 NY2d 509 [1995]; People v Kisoon, 23 AD3d 18, 21 [2005], affd 8 NY3d 129[2007]). In any event, the trial court's failure to mark the jury notes in strict compliance with theprocedure set forth in O'Rama does not require reversal because the court fulfilled itscore responsibilities under CPL 310.30 by reading each note into the record in the presence ofdefense counsel, and giving defense counsel a meaningful opportunity to participate in theformulation of the court's responses (seePeople v Woodrow, 89 AD3d 1158, 1159-1160 [2011]; People v Smikle, 82 AD3d 1697[2011]).
The remaining contention in the defendant's pro se supplemental brief is without merit.Rivera, J.P., Florio, Eng and Roman, JJ., concur.