Opinion
(Ind.No. 10442/09).
01-13-2016
The PEOPLE, etc., respondent, v. Maleek COLLINS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Terrence F. Heller of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Terrence F. Heller of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered February 10, 2011, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a fine in the sum of $1,000 upon the conviction of robbery in the second degree; as so modified, the judgment is affirmed.
The defendant argues on appeal that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during summation. This contention is unpreserved for appellate review since the defendant failed to object to the remarks he now challenges (see CPL 470.052; People v. Flanagan, 132 A.D.3d 693, 694, 17 N.Y.S.3d 178, lv. granted 26 N.Y.3d 1039, 22 N.Y.S.3d 169, 43 N.E.3d 379). In any event, most of the challenged remarks were fair comment on the evidence and fair response to the arguments made by defense counsel in summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Willis, 122 A.D.3d 950, 950, 997 N.Y.S.2d 472). To the extent that some of the prosecutor's remarks made during her summation were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Flanagan, 132 A.D.3d at 694, 17 N.Y.S.3d 178; People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146; People v. Walston, 196 A.D.2d 903, 602 N.Y.S.2d 152).
Defense counsel's failure to object to the improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel (see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109 ; People v. Williams, 123 A.D.3d 1152, 1154, 997 N.Y.S.2d 499, lv. granted 25 N.Y.3d 1173, 15 N.Y.S.3d 305, 36 N.E.3d 108; People v. Brooks, 89 A.D.3d 746, 931 N.Y.S.2d 894). The record reveals that defense counsel provided meaningful representation (see People v. Taylor, 1 N.Y.3d at 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Williams, 123 A.D.3d at 1154, 997 N.Y.S.2d 499).
The sentence was excessive to the extent indicated herein.
MASTRO, J.P., AUSTIN, MALTESE and BARROS, JJ., concur.