Opinion
October 1, 1999
Appeal from Judgment of Supreme Court, Erie County, Cosgrove, J. — Burglary, 2nd Degree.
Judgment unanimously affirmed.
Memorandum:
Contrary to defendant's contention, a motion to dismiss the indictment pursuant to CPL 30.30 would not have been successful, and defendant therefore was not denied the right to effective assistance of counsel by the failure of assigned counsel to make such a motion (see, People v. Ayala, 236 A.D.2d 802, lv denied 90 N.Y.2d 855; People v. Torrence, 135 A.D.2d 1075, lv denied 70 N.Y.2d 1011). We further reject the contention of defendant that he was denied the right to a fair trial by prosecutorial misconduct on summation. Defendant failed to preserve for our review his contention that the prosecutor's remark concerning the testimony of a 13-year-old defense witness was improper (see, CPL 470.05), 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 [a]). The prosecutor's remaining remarks on summation to which defendant objects were based upon the evidence and were made in response to defense counsel's summation, and thus defendant was not thereby denied the right to a fair trial (see, People v. Halm, 81 N.Y.2d 819, 821; People v. Dunbar, 213 A.D.2d 1000, lv denied 85 N.Y.2d 972). Further, upon weighing the relative probative force of the conflicting testimony, we conclude that the verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Long, 224 A.D.2d 949, lv denied 88 N.Y.2d 967). Finally, the sentence is neither unduly harsh nor severe.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.