Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Joshua M. MILLER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of felony driving while intoxicated (Vehicle and Traffic Law §§ 1192[3]; 1193[1][c] [ii] ), defendant contends that he was deprived of a fair trial by the prosecutor's comments on summation, including a statement that defense counsel was trying to “divert [the jury's] attention away from the truth.” Although the prosecutor's statement was improper ( see People v. Paul, 229 A.D.2d 932, 933, 645 N.Y.S.2d 682;People v. Carter, 227 A.D.2d 661, 663, 641 N.Y.S.2d 908,lv. denied 88 N.Y.2d 1067, 651 N.Y.S.2d 411, 674 N.E.2d 341;People v. Dunbar, 213 A.D.2d 1000, 1000, 625 N.Y.S.2d 772,lv. denied85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628), that isolated comment did not deprive defendant of a fair trial ( see People v. Santiago, 289 A.D.2d 1070, 1071, 735 N.Y.S.2d 852,lv. denied97 N.Y.2d 761, 742 N.Y.S.2d 621, 769 N.E.2d 367;People v. Chislum, 244 A.D.2d 944, 945, 665 N.Y.S.2d 183,lv. denied91 N.Y.2d 924, 670 N.Y.S.2d 406, 693 N.E.2d 753;see generally People v. Scott, 60 A.D.3d 1483, 1484, 875 N.Y.S.2d 728,lv. denied12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594;People v. Roman, 13 A.D.3d 1115, 1116, 787 N.Y.S.2d 568,lv. denied4 N.Y.3d 802, 795 N.Y.S.2d 178, 828 N.E.2d 94). Furthermore, a prosecutor's closing statement must be evaluated in light of defense counsel's summation ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Morgan, 66 N.Y.2d 255, 259, 496 N.Y.S.2d 401, 487 N.E.2d 258), and we conclude that the remainder of the prosecutor's comments at issue were “a fair response to defense counsel's summation and did not exceed the bounds of legitimate advocacy” ( People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893,lv. denied4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979;see generally Halm, 81 N.Y.2d at 821, 595 N.Y.S.2d 380, 611 N.E.2d 281).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.