| People v Portes |
| 2015 NY Slip Op 01297 [125 AD3d 794] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Walter Portes, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AntheaH. Bruffee, and Michael L. Brenner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered August 31, 2012, convicting him of murder in the second degreeand criminal possession of a weapon in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that comments made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review, as the defendant did not,at the time, object to the comments (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vCaldwell, 115 AD3d 870, 871 [2014]; People v Bilal, 79 AD3d 900, 901 [2010]). In any event,the challenged comments were either fair comment on the evidence (see People vAshwal, 39 NY2d 105, 109-110 [1976]; People v Applewhite, 50 AD3d 1046, 1046 [2008];People v McHarris, 297 AD2d 824, 825 [2002]), or responsive to arguments andtheories presented in the defense summation (see People v Cass, 18 NY3d 553, 564 [2012]; People v Perez, 120 AD3d514, 516 [2014]; People vBarcero, 116 AD3d 1060, 1061 [2014]). To the extent that some of theprosecutor's remarks were improper, those remarks did not deprive the defendant of a fairtrial (see People v Boley,116 AD3d 965, 966 [2014]; People v Roscher, 114 AD3d 812, 813 [2014]).
Contrary to the defendant's contention, he was not deprived of his constitutional rightof confrontation by the admission of an autopsy report without the testimony of themedical examiner who prepared the report (see People v Freycinet, 11 NY3d 38, 42 [2008]; People v Green, 110 AD3d825, 826 [2013]). Thus, contrary to the defendant's contention, he was not deprivedof the effective assistance of counsel based upon defense counsel's failure to object to theadmission of the autopsy report, as counsel is not deemed ineffective for failing to makea motion or argument that had little or no chance of success (see People v Ennis, 11 NY3d403, 415 [2008]; People vStultz, 2 NY3d 277, 287 [2004]; People v Jackson, 117 AD3d 966, 969 [2014]; People v Gomez, 67 AD3d927, 928 [2009]). Dillon, J.P., Dickerson, Cohen and Barros, JJ., concur.