People v Ortiz-Castro
2004 NY Slip Op 08387 [12 AD3d 1071]
November 19, 2004
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 19, 2005

The People of the State of New York, Respondent, v Jose Ortiz-Castro, Appellant.


Appeal from a judgment of the Supreme Court, Monroe County (Donald J. Mark, J.), rendered December 7, 1995. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03), defendant contends that he was deprived of a fair trial by prosecutorial misconduct. "By failing to object to most of the statements by the prosecutor that are now alleged to constitute misconduct, defendant failed to preserve for our review his contentions with respect to those statements" (People v Hess, 234 AD2d 925, 925 [1996], lv denied 90 NY2d 1011 [1997]; see People v Smyth, 233 AD2d 746, 749 [1996], lv denied 89 NY2d 1015 [1997]), nor is reversal warranted based on the alleged instances of misconduct that are preserved for our review. We note our strong disapproval of the misconduct of the prosecutor in summation of playing on the sympathies and fears of the jury, in denigrating the defense, and in expressing his personal opinion of the credibility of the witnesses. Nonetheless, the misconduct was not so egregious as to deprive defendant of his right to a fair trial (see generally People v Rubin, 101 AD2d 71, 77-78 [1984], lv denied 63 NY2d 711 [1984]), particularly in light of the overwhelming evidence of defendant's guilt (see generally People v Morgan, 66 NY2d 255, 259 [1985]; People v Doran, 10 AD3d 425 [2004]). Finally, viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]). Present—Pigott, Jr., P.J., Green, Pine, Hurlbutt and Scudder, JJ.