Opinion
KA 01-01900
February 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered May 19, 1998, convicting defendant after a jury trial of, inter alia, murder in the second degree.
NORMAN P. EFFMAN, ATTICA, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of, inter alia, murder in the second degree (Penal Law § 20.00, 125.25) and attempted murder in the second degree (Penal Law § 20.00, 110.00, 125.25) in connection with the shooting of two men by the codefendant. Contrary to defendant's contention, the conviction is supported by legally sufficient evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant further contends that Supreme Court failed to rule on his motion to dismiss the indictment and that reversal is therefore required. The failure to rule on the motion "is deemed a denial of the motion" ( People v. Virgil, 269 A.D.2d 850, lv denied 95 N.Y.2d 806; see also, People v. Bailey, 58 N.Y.2d 272, 275) and we conclude that the motion was properly denied.
Defendant further contends that he was denied the right to testify by defense counsel's withdrawal of the Sandoval motion at the close of proof and that the court therefore erred in denying his postverdict motion to set aside the verdict on that ground. That contention is based upon communications between defendant and his counsel that are dehors the record and thus the appropriate procedural vehicle to raise that contention is a motion pursuant to CPL article 440 ( see, People v. Englert, 285 A.D.2d 987). By failing to object to the prosecutor's comments during summation and the court's remarks to the jury regarding sequestration, defendant failed to preserve for our review his contentions that he was denied a fair trial by those comments and remarks ( see, CPL 470.05). In any event, those contentions are without merit.