| People v Withfield |
| 2013 NY Slip Op 03117 [106 AD3d 760] |
| May 1, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Withfield, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall,and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered March 18, 2010, convicting him of criminal sexual act in the firstdegree, upon a jury verdict, and sentencing him to a determinate term of imprisonment offive years, followed by a period of 20 years of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the period of postrelease supervision from a period of 20 years to aperiod of 10 years; as so modified, the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's claim that he was deprived of the effective assistance of counsel iswithout merit, as he did not demonstrate that there was no strategic or legitimateexplanation for defense counsel's allegedly deficient conduct or that defense counselotherwise failed to provide meaningful representation (see People v Benevento,91 NY2d 708, 712 [1998]; People v Rivera, 71 NY2d 705, 709 [1988];People v Baldi, 54 NY2d 137, 147 [1981]; People v Alston, 77 AD3d 762 [2010]).
The defendant's contention that a certain remark made by the prosecutor during hersummation deprived him of due process and a fair trial is unpreserved for appellatereview (see CPL 470.05 [2]; People v Osorio, 49 AD3d 562, 563-564 [2008]). In anyevent, the challenged remark was fair comment on the evidence, remained within thebroad bounds of rhetorical comment permissible in summations, and was responsive tothe summation of defense counsel (see People v Flowers, 102 AD3d 885 [2013]; People v Dorgan, 42 AD3d505, 505 [2007]; People vBarnes, 33 AD3d 811, 812 [2006]).
However, the period of postrelease supervision imposed was excessive to the extent[*2]indicated herein (see People v Suitte, 90AD2d 80 [1982]). Skelos, J.P., Angiolillo, Roman and Miller, JJ., concur.