People v. Fernandez

May 17, 2004
Versions:7 A.D.3d 730
776 N.Y.S.2d 512

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered July 10, 2001, convicting him of murder in the second degree (two counts), robbery in the first *731degree, and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant’s arguments regarding alleged prosecutorial misconduct during summation are largely unpreserved for appellate review (see CPL 470.05 [2]; People v Dien, 77 NY2d 885 [1991]; People v Nuccie, 57 NY2d 818 [1982]). In any event, the comments alleged to be inflammatory and prejudicial were either fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]) or responsive to arguments presented in the defense counsel’s summation (see People v Galloway, 54 NY2d 396 [1981]).

The defendant contends that he was denied the effective assistance of counsel at the trial. However, to prevail on a claim of ineffective assistance of counsel, the defendant must overcome the strong presumption that the defense counsel rendered effective assistance (see People v Baldi, 54 NY2d 137 [1981]; People v Myers, 220 AD2d 461 [1995]). After a review of the record in its entirety and without giving undue significance to retrospective analysis, we are satisfied that the defendant received the effective assistance of counsel (see People v Myers, supra).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Santucci, J.P., Krausman, Schmidt and Rivera, JJ., concur.