Opinion
2012-01-31
The PEOPLE of the State of New York, Respondent, v. Jack COMER, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ). Supreme Court properly denied that part of defendant's omnibus motion seeking to dismiss the indictment pursuant to CPL 30.30(1)(a) and 210.20(1)(g). The record supports the court's determination that the People met their burden of establishing that the period of defendant's absence was not chargeable to them by showing that defendant's location was unknown and that he was attempting to avoid apprehension or prosecution ( see CPL 30.30[4][c][i]; People v. Flagg, 30 A.D.3d 889, 891, 819 N.Y.S.2d 577, lv. denied 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon our review of the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, we conclude that defense counsel afforded defendant “meaningful representation” ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Finally, defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct during summation ( see CPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.