People v. Cass
914 N.Y.S.2d 176
N.Y. App. Div.
2010
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MICKEY CASS, Appellant.

Supreme Court, Appellate Division, Second Department, New York

2010

914 NYS2d 176

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MICKEY CASS, Appellant. [914 NYS2d 176]—

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach, J.), rendered October 26, 2004, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgement is affirmed.

The defendant was convicted of murder in the second degree for strangling the victim.

The defendant‘s contention that his due process rights were violated by the detectives’ failure to videotape the entirety of his interrogation is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, is without merit (see

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Moreover, under the circumstances presented here, the defendant‘s statement regarding his role in a prior homicide in which another male victim was strangled, under circumstances similar to the death of the victim in this case, was admissible for the purpose of disproving the defendant‘s claim that he was acting under the influence of extreme emotional disturbance when he strangled the victim in this case (see

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). Any potential for prejudice was far outweighed by the probative value of the evidence (see
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The defendant‘s contention that various comments made by the prosecutor during her summation were improper and deprived him of a fair trial is not preserved for appellate review, as the defendant either failed to make specific and timely objections, seek curative instructions, or move for a mistrial when the trial court sustained the objections (see CPL 470.05 [2];

;
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). In any event, most of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, fair comment on the evidence, or responsive to theories and contentions presented in the defense summation (see
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). Any error resulting from the remaining challenged remarks was harmless (see
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). Furthermore, defense counsel‘s failure to object to the challenged remarks did not constitute ineffective assistance of counsel (see
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Insofar as the defendant‘s contention that he did not authorize defense counsel to claim that he was acting under the influence of extreme emotional disturbance is based upon matter which is dehors the record, it is not reviewable on this appeal (see e.g.

, lv denied 15 NY3d 856 [2010]). To the extent that this contention can be reviewed, the record establishes that defense counsel properly consulted and informed the defendant and that the defendant freely agreed to proceed with the defense.

The defendant‘s remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review and, in any event, are without merit. Mastro, J.P., Florio, Leventhal and Sgroi, JJ., concur.