People v. Tolliver

Mar 13, 1998
Versions:248 A.D.2d 988
670 N.Y.S.2d 130
1998 N.Y. App. Div. LEXIS 3052

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03). The record does not support the contention that defendant was deprived of a fair trial by his appearance before the jury in clothing issued by the jail (see, People v Tolliver, 217 AD2d 978, Iv denied 86 NY2d 847). In denying defendant’s request at the beginning of trial to appear in clothing other than jail-issued clothing, County Court noted that the clothing was not identifiable as jail garb. Defense counsel did not contend otherwise, nor is there any contradictory evidence in the record.

The contention of defendant that he was deprived of a fair trial by prosecutorial misconduct on summation is not preserved for our review (see, CPL 470.05 [2]; People v Weaver, 234 AD2d 904, Iv denied 89 NY2d 1102). In any event, the comments complained of were within the prosecutor’s “wide rhetorical bounds” to comment upon the evidence or respond to defense counsel’s summation (People v Price, 144 AD2d 1013, Iv denied 73 NY2d 895).

We conclude that the verdict is supported by legally sufficient evidence and is not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

Defendant was not deprived of a fair trial by ineffective assistance of counsel. The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant was afforded meaningful representation (see, People v Baldi, 54 NY2d 137, 147). The contention of defendant that he was deprived of a fair trial because of cumulative error is without merit. Finally, defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Onondaga County Court, Burke, J.— Attempted Murder, 2nd Degree.)

Present — Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.