| People v Katehis |
| 2014 NY Slip Op 03862 [117 AD3d 1080] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Katehis, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andThomas M. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered December 13, 2011, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction is unpreserved for appellate review, as defense counsel made only a generalmotion for a trial order of dismissal based upon the People's alleged failure to make out aprima facie case (see CPL 470.05; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Chance, 105 AD3d758, 759 [2013]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt.Additionally, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that certain of the prosecutor's summation commentsdeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]; People v Kinard, 96AD3d 976, 977 [2012]). In any event, the now-challenged remarks either constitutedfair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110[1976]; People v Herb, 110AD3d 829, 831 [2013]), were responsive to arguments and theories presented indefense counsel's summation (see People v Gross, 88 AD3d 905, 906 [2011]), werepermissible rhetorical comment (see People v Ashwal, 39 NY2d at 109-110;People v Herb, 110 AD3d at 831), or did not deprive the defendant of a fair trial(see CPL 470.15 [6] [a]).
The defendant consented to the admission into evidence of certain emails andphotographs, so he may not complain now that their admission was error (see People v Green, 92 AD3d953, 954 [2012]; People vStroman, 27 AD3d 589, 590 [2006]; People v Reuben, 215 AD2d 508,509 [1995]). Moreover, defense counsel's consent to the admission of this evidence, byitself, did not deprive the defendant of his right to effective assistance of counsel (see People v Stultz, 2 NY3d277, 287 [2004]; People vMcFarlane, 106 AD3d 836, 837 [2013]; see also Strickland vWashington, 466 US 668, 695-696 [1984]; cf. Hinton v Alabama, 571 US&mdash, &mdash, 134 S Ct 1081, 1089 [2014]; People v Turner, 5 NY3d 476, 478 [2005]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Balkin, J.P., Dickerson, Chambers and Hall, JJ., concur.