| People v Cotto |
| 2013 NY Slip Op 03255 [106 AD3d 1534] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vLamario Cotto, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ryan D. Haggerty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered June 7, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]). Defendant failed to preserve for our review his contention that he wasdenied a fair trial by prosecutorial misconduct during summation inasmuch as he did notobject to any of the alleged improprieties (see People v Rumph, 93 AD3d 1346, 1347 [2012], lvdenied 19 NY3d 967 [2012]; People v Smith, 90 AD3d 1565, 1567 [2011], lvdenied 18 NY3d 998 [2012]; People v Mull, 89 AD3d 1445, 1446 [2011], lvdenied 19 NY3d 965 [2012]). In any event, defendant's contention is without merit.Some of the prosecutor's allegedly improper comments were " 'either a fair response todefense counsel's summation or fair comment on the evidence' " (People v Green, 60 AD3d1320, 1322 [2009], lv denied 12 NY3d 915 [2009]), and the remainingalleged instances of misconduct were not so egregious as to deprive defendant of a fairtrial (see People v Pringle,71 AD3d 1450, 1451 [2010], lv denied 15 NY3d 777 [2010]; People v Scott, 60 AD3d1483, 1484 [2009], lv denied 12 NY3d 859 [2009]). Notably, two of theinstances of alleged prosecutorial misconduct cited by defendant relate solely to thecount of which he was acquitted. Finally, the sentence imposed is not unduly harsh orsevere. Present—Smith, J.P., Fahey, Carni, Sconiers and Whalen, JJ.