| People v Mastowski |
| 2017 NY Slip Op 08113 [155 AD3d 1624] |
| November 17, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Robert J.Mastowski, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered January 6, 2014. The judgment convicted defendant, upon a jury verdict, of vehicularmanslaughter in the first degree and driving while intoxicated, a class E felony (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing those parts convicting defendant of two counts of driving while intoxicated anddismissing counts two and three of the indictment, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofvehicular manslaughter in the first degree (Penal Law § 125.13 [3]) and two countsof driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]). Defendantcontends that he was deprived of a fair trial by prosecutorial misconduct during summation. Asan initial matter, we note that defendant failed to object to all but one of the instances of allegedmisconduct (see CPL 470.05 [2]; People v Gonzalez, 81 AD3d 1374, 1374 [4th Dept 2011]), and wedecline to exercise our power to review those unpreserved instances as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). We nevertheless take this opportunity toadmonish the prosecutor "and remind him that prosecutors have 'special responsibilities. . . to safeguard the integrity of criminal proceedings and fairness in the criminalprocess' " (People vHuntsman, 96 AD3d 1387, 1388 [4th Dept 2012], lv denied 20 NY3d 1099[2013], quoting People v Santorelli, 95 NY2d 412, 421 [2000]).
With respect to the one preserved instance of alleged misconduct, we conclude thatdefendant's contention is without merit. Contrary to defendant's contention, the prosecutor didnot call him a "liar" during summation; rather, the prosecutor argued that defendant "lie[d] to thepolice about his alcohol consumption" prior to operating his motor vehicle at the time and placeat issue. We conclude that the prosecutor's remark was fair comment on the evidence (see generally People v Rivera, 133AD3d 1255, 1256 [4th Dept 2015], lv denied 27 NY3d 1154 [2016]). Contrary todefendant's further contention, "examin[ing] the trial as a whole," we conclude that defendantwas afforded meaningful representation (People v Schulz, 4 NY3d 521, 530 [2005]; see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]).
The People correctly concede, however, that counts two and three, charging driving whileintoxicated, must be dismissed as lesser inclusory counts of count one, charging vehicularmanslaughter in the first degree (seePeople v Bank, 129 AD3d 1445, 1448 [4th Dept 2015], affd 28 NY3d 131[2016]), and we therefore modify the judgment accordingly. Defendant's failure to preserve theissue for our review is of no moment because preservation is not required (see People v Moore, 41 AD3d1149, 1152 [4th Dept 2007], lv denied 9 NY3d 879 [2007], deniedreconsideration 9 NY3d 992 [2007]). Present—Carni, J.P., Lindley, NeMoyer, Curranand Troutman, JJ.