Opinion
No. KA 05-02595.
February 8, 2008.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered December 17, 2004. The judgment convicted defendant upon a jury verdict of, inter alia, robbery in the first degree.
EDWARD J. NOWAK, DISTRICT ATTORNEY, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree (Penal Law § 160.15). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v Finger, 95 NY2d 894; People v Gray, 86 NY2d 10, 19) and, in any event, that contention is without merit ( see generally People v Bleakley, 69 NY2d 490, 495). Although defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct during summation ( see People v Wellsby, 30 AD3d 1092, lv denied 7 NY3d 796), we conclude in any event that the contention is without merit inasmuch as the prosecutor's comments were either a fair response to defense counsel's summation or were fair comment on the evidence ( see People v Williams, 43 AD3d 1336; see generally People v Halm, 81 NY2d 819, 821). In addition, defendant failed to preserve for our review his contention that Supreme Court erred in sentencing him as a second violent felony offender ( see People v Lawrence, 23 AD3d 1039, 1039-1040, lv denied 6 NY3d 835; People v Sullivan, 4 AD3d 223, lv denied 2 NY3d 765; see also People v Smith, 73 NY2d 961, 962-963), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see Lawrence, 23 AD3d at 1040).
Contrary to the contention of defendant, he was not denied effective assistance of counsel inasmuch as "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation" ( People v Baldi, 54 NY2d 137, 147). The verdict is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495), and the sentence is not unduly harsh or severe.
We have considered defendant's remaining contentions and conclude that they are without merit.