Opinion
2012-11-14
The PEOPLE, etc., respondent, v. Pamela HANSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered June 22, 2009, convicting her of murder in the second degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that she was deprived of a fair trial by the Supreme Court's failure to disclose and respond to two jury notes. Since the record is bereft of any evidence that these notes were actually received by the Supreme Court, the defendant's contention is based on matter dehors the record and, therefore, is not properly before us on direct appeal ( see People v. Jenkins, 81 A.D.3d 662, 663, 918 N.Y.S.2d 114;People v. Farrier, 45 A.D.3d 603, 604, 844 N.Y.S.2d 709;People v. Bramble, 37 A.D.3d 484, 485, 829 N.Y.S.2d 205;People v. Conyers, 298 A.D.2d 597, 598, 748 N.Y.S.2d 687).
The defendant's contention that the prosecutor made improper remarks during his summation is unpreserved for appellate review, as the defendant either did not object to the remarks at issue or made only general objections ( seeCPL 470.05[2]; People v. Parker–Davidson, 89 A.D.3d 1114, 933 N.Y.S.2d 603). In any event, most of the challenged remarks were proper because they were within the broad bounds of rhetorical comment permissible in closing arguments, responsive to arguments made by defense counsel in summation, or constituted fair comment on the evidence ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;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. Brown, 79 A.D.3d 1142, 1142, 913 N.Y.S.2d 571;People v. Torres, 71 A.D.3d 1063, 896 N.Y.S.2d 875). To the extent that some of the challenged remarks were improper, such as a certain ad hominem comment made about the defendant and a certain ad hominem comment made about defense counsel, any error resulting from those remarks was harmless in light of the overwhelming evidence of the defendant's guilt ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Brown, 79 A.D.3d at 1142, 913 N.Y.S.2d 571;People v. Torres, 71 A.D.3d at 1063, 896 N.Y.S.2d 875). Furthermore, defense counsel's failure to object to the challenged remarks did not constitute ineffective assistance of counsel ( see People v. Tonge, 93 N.Y.2d 838, 840, 688 N.Y.S.2d 88, 710 N.E.2d 653;People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Archer, 82 A.D.3d 781, 917 N.Y.S.2d 901;People v. Moore, 77 A.D.3d 685, 686, 908 N.Y.S.2d 351).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).