Opinion
November 13, 2000.
Appeal from Judgment of Monroe County Court, Egan, J. — Murder, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., GREEN, HURLBUTT, SCUDDER AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
Contrary to defendant's contention, reversal is not required based on County Court's refusal to admit in evidence a written prior inconsistent statement by a prosecution witness. The substance of that prior statement was admitted in evidence through defense counsel's cross-examination of that witness ( see, People v. Piazza, 48 N.Y.2d 151, 164-165; People v. Moore, 267 A.D.2d 9 69, 969-970). There is no merit to the contention that defendant was deprived of a fair trial by prosecutorial misconduct on summation. Several of the allegedly improper statements were fair response to comments by defense counsel on summation regarding the credibility of prosecution witnesses ( see, People v. Halm, 81 N.Y.2d 819, 821; People v. Pepe, 259 A.D.2d 949, 950, lv denied 93 N.Y.2d 1024; People v. Dunbar, 213 A.D.2d 1000, lv denied 85 N.Y.2d 972). The remaining improper statements were not so egregious or prejudicial that they require reversal ( see, People v. Edwards, 167 A.D.2d 864, lv denied 77 N.Y.2d 877). The court also properly denied as untimely defendant's request for a missing witness charge ( see, People v. Gonzalez, 68 N.Y.2d 424, 427-428; People v. Miller, 269 A.D.2d 746, lv denied 95 N.Y.2d 800). There is no merit to defendant's contention that the court erred in refusing to charge criminally negligent homicide as a lesser included offense of depraved indifference murder. According to the evidence at trial, defendant fired a gun several times into a crowd. Thus, there is no reasonable view of the evidence to support a finding that defendant committed the lesser offense but not the greater ( see, CPL 300.50; People v. Butler, 84 N.Y.2d 627, 631; People v. Singleton [Reginald], 272 A.D.2d 561). Finally, based on the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147; People v. Standard, 273 A.D.2d 870).