People v. Portes

• Decision Date: 11 February 2015
• Citation: 125 A.D.3d 794,4 N.Y.S.3d 97,2015 N.Y. Slip Op. 01297
• Parties: The PEOPLE, etc., respondent, v. Walter PORTES, appellant.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 794

4 N.Y.S.3d 97

2015 N.Y. Slip Op. 01297

The PEOPLE, etc., respondent

v.Walter PORTES, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 11, 2015.

Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Michael L. Brenner of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered August 31, 2012, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that comments made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review, as the defendant did not, at the time, object to the comments (see CPL 470.05 [2 ]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Caldwell, 115 A.D.3d 870, 871, 982 N.Y.S.2d 356 ; People v. Bilal, 79 A.D.3d 900, 901, 912 N.Y.S.2d 678 ). In any event, the challenged comments were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Applewhite, 50 A.D.3d 1046, 1046, 856 N.Y.S.2d 230 ; People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57 ), or responsive to arguments and theories presented in the defense summation (see People v. Cass, 18 N.Y.3d 553, 564, 942 N.Y.S.2d 416, 965 N.E.2d 918 ; People v. Perez, 120 A.D.3d 514, 516, 990 N.Y.S.2d 590 ; People v. Barcero, 116 A.D.3d 1060, 1061, 984 N.Y.S.2d 419 ). To the extent that some of the prosecutor's remarks were improper, those remarks did not deprive the defendant of a fair trial (see People v. Boley, 116 A.D.3d 965, 966, 983 N.Y.S.2d 830 ; People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146 ).

Contrary to the defendant's contention, he was not deprived of his constitutional right of confrontation by the admission of an autopsy report without the testimony of the medical examiner who prepared the report (see People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 ; People v. Green, 110 A.D.3d 825, 826, 973 N.Y.S.2d 679 ). Thus, contrary to the defendant's contention, he was not deprived of the effective assistance of counsel based upon defense counsel's failure to object to the admission of the autopsy report, as counsel is not deemed ineffective for failing to make a motion or argument that had little or no chance of success (see People v. Ennis, 11 N.Y.3d 403, 415, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v....