| People v Hawley |
| 2013 NY Slip Op 08661 [112 AD3d 968] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mike Hawley, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J.Dennehy, and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Carroll, J.), rendered August 18, 2010, convicting him of attempted assault in the firstdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial by the admission oftestimony by an eyewitness to the effect that the eyewitness did not testify before thegrand jury because he was afraid for his life and the lives of his family members isunpreserved for appellate review (see CPL 470.05 [2]; see generally People vO'Keefe, 105 AD3d 1062 [2013]). In any event, this contention is without merit,since this testimony was directed at the eyewitness's testimonial role, rather than anyimplication that the defendant had threatened him, and the trial court gave a limitinginstruction to the jury that the testimony was only to be considered as it related to theeyewitness's state of mind (seePeople v Howard, 7 AD3d 314, 314 [2004]).
The defendant's contention that the prosecutor's summation remark that it took theeyewitness great courage to testify at trial, and certain additional comments made by theprosecutor during summation, deprived him of a fair trial is also unpreserved forappellate review (see CPL 470.05 [2]). In any event, the comments were eitherfair comment on the evidence and the reasonable inferences to be drawn therefrom orresponsive to defense counsel's summation, or otherwise did not deprive the defendant ofa fair trial (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Hoke, 111 AD3d959 [2013]; People vMcGowan, 111 AD3d 850 [2013]; People v O'Keefe, 105 AD3d at1063-1064; People vCromwell, 99 AD3d 1017, 1017-1018 [2012]).
The defendant's claim that defense counsel's failure to object to the challengedsummation comments deprived him of his right to the effective assistance of counsel iswithout merit. Viewing defense counsel's performance as a whole, the defendant wasprovided with meaningful representation. Furthermore, the majority of the challengedsummation comments were either responsive to defense counsel's summation or faircomment on the evidence or the rational inferences to be drawn therefrom, and to theextent that certain remarks were improper, defense [*2]counsel's failure to object to those remarks did notconstitute ineffective assistance of counsel (see generally People v Hanson, 100 AD3d 771 [2012],lv granted 21 NY3d 1016 [2013]). Angiolillo, J.P., Dickerson, Austin andHinds-Radix, JJ., concur.