Opinion
KA 01-01683
February 7, 2003.
Appeal from a judgment of Monroe County Court (Kohout, J.), entered April 4, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the second degree (§ 265.03 [2]), defendant contends that he was denied a fair trial by prosecutorial misconduct on summation and that he was denied his statutory right to speak at sentencing (see CPL 380.50). Neither contention is preserved for our review (see People v. Green, 54 N.Y.2d 878, 880; People v. Hess, 234 A.D.2d 925, lv denied 90 N.Y.2d 1011), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Contrary to the further contention of defendant, the verdict finding him guilty of depraved indifference murder is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495).