Opinion
No. 2003-02642.
March 27, 2007.
Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered March 4, 2003, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
Alvin L. Spitzer, New City, N.Y., for appellant.
Michael E. Bongiorno, District Attorney, New City, N.Y. (Stephanie A. Small of counsel), for respondent.
Before: Miller, J.P., Spolzino, Ritter and Dillon, JJ., concur.
Ordered that the judgment is affirmed.
The defendant's warrantless arrest inside a house was justified under the exigent circumstances exception to the Payton rule ( see Payton v New York, 445 US 573; People v Scott, 6 AD3d 465).
To the extent that the defendant argues that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, the issue is unpreserved for appellate review, since the defense counsel made only a general motion to dismiss at the close of the People's case ( see CPL 470.05; People v Gray, 86 NY2d 10, 19; People v Anthony, 21 AD3d 903, 903-904). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see People v Gonzalez, 193 AD2d 360, 361). Moreover, upon the exercise of our factual review power ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, 7 NY3d 633).
The failure to raise an objection to the remarks made by the prosecutor on summation renders the defendant's claim that he was denied his right to a fair trial unpreserved for appellate review ( see CPL 470.05; People v Garner, 27 AD3d 764). In any event, the comments alleged to be inflammatory and prejudicial were all either fair comment on the evidence ( see People v Ashwal, 39 NY2d 105), responsive to arguments and theories presented in the defense summation ( see People v Galloway, 54 NY2d 396), or harmless in light of the overwhelming evidence of the defendant's guilt ( see People v Crimmins, 36 NY2d 230, 241).
The failure to either request specific instructions with regard to a jury charge or to timely object to the charge as given renders the defendant's claim that he was denied his right to a fair trial as a result of the court's instruction unpreserved for appellate review ( see CPL 470.05; People v Edwards, 292 AD2d 393, 394). In any event, when considered as a whole, the charge sufficiently conveyed the correct standard ( see People v Fields, 87 NY2d 821, 823).
The defendant's claim that he was denied the effective assistance of counsel is without merit ( see People v Benevento, 91 NY2d 708, 713).