Opinion
No. 1347.
June 14, 2007.
Judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), rendered September 27, 2002, convicting defendant, after a jury trial, of operating a motor vehicle while under the influence of alcohol and criminal mischief in the fourth degree, and sentencing him to a term of five years' probation with restitution in the amount of $1,471, unanimously affirmed.
Marlon G. Kirton, New York, for appellant.
Robert M. Morgenthau, District Attorney, New York (Elizabeth Squires of counsel), for respondent.
Before: Mazzarelli, J.P., Sullivan, Buckley, Sweeny and Catterson, JJ.
Defendant's claims of prosecutorial misconduct in cross-examination and summation are unpreserved, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the questions posed by the prosecutor during the cross-examination of defendant, including asking if the prosecution witnesses were "mistaken" in their recollection of the events, were appropriate in light of defendant's testimony ( see People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976). The prosecutor's remarks during summation were fair comment on the evidence, were responsive to defense counsel's summation, and did not serve to shift the burden of proof ( id.).
Defendant received effective assistance of counsel under the state and federal standards ( see People v Benevento, 91 NY2d 708, 713-714; see also Strickland v Washington, 466 US 668 [1984]). Defendant was not prejudiced by his attorney's failure to make various objections.