| People v Murphy |
| 2015 NY Slip Op 08197 [133 AD3d 690] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Artis Murphy, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Benjamin S. Litman of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A.Grob, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered November 1, 2013, convicting him of criminal possession ofmarijuana in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that certain remarks made by the prosecutor duringsummation deprived him of a fair trial is unpreserved for appellate review, since he eitherfailed to object to the remarks at issue, objected on grounds other than those currentlyraised, or failed to request further curative relief or move for a mistrial when hisobjections were sustained or the court sua sponte gave curative instructions (seeCPL 470.05 [2]; People vRomero, 7 NY3d 911, 912 [2006]; People v Philips, 120 AD3d 1266, 1268 [2014]; People v Martin, 116 AD3d981, 982 [2014]). In any event, the challenged remarks were fair comment on theevidence, fair response to the defense summation (see People v Galloway, 54NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]), orwere not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v Joubert, 125AD3d 686 [2015]; People vRhodes, 115 AD3d 681, 682-683 [2014]; People v Fields, 115 AD3d 673, 674 [2014]). To the extentthat any prejudicial effect may have resulted from any of the challenged remarks, it wasameliorated by the court's instructions (see People v Galloway, 54 NY2d at 399;People v Safian, 46 NY2d 181, 190 [1978]; People v Jorgensen, 113 AD3d 793, 795 [2014]). Further,defense counsel's failure to object to the subject comments did not constitute ineffectiveassistance of counsel (seePeople v Friel, 53 AD3d 667, 668 [2008]; People v Rose, 47 AD3d 848, 849 [2008]).
The defendant's contention that the Supreme Court erred in failing to respond to ajury note before taking the verdict is unpreserved for appellate review (see CPL470.05 [2]; People v Alcide,21 NY3d 687, 694 [2013]; People v Ramirez, 15 NY3d 824, 826 [2010]; People v Braithwaite, 126AD3d 993, 996 [2015]; People v Albanese, 45 AD3d 691, 692 [2007]). In anyevent, the fact that a verdict was reached before the court responded to the jury noteimplied that the jury had resolved the issue on its own (see People v Braithwaite,126 AD3d at 996; People vSorrell, 108 AD3d 787, 793 [2013]; People v Cornado, 60 AD3d 450, 451 [2009]; People vAlbanese, 45 AD3d at 692). Further, defense counsel's failure to object to the court'sprocedure in taking the verdict without responding to the jury note did not constituteineffective assistance of counsel (see People v Brown, 17 NY3d 742, 743-744 [2011];People [*2]v Rivera, 71 NY2d 705, 709 [1988]).Mastro, J.P., Dickerson, Austin and Maltese, JJ., concur.