Opinion
July 14, 1995
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that Supreme Court erred in charging intentional murder and depraved indifference murder in the conjunctive (see, People v. Gallagher, 69 N.Y.2d 525). That contention has not been preserved for our review (see, CPL 470.05; People v. Martin, 50 N.Y.2d 1029, 1031; see also, People v. Gray, 86 N.Y.2d 10), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). Defendant further contends that he was denied effective assistance of counsel. We conclude that "the evidence, the law, and the circumstances of [the] * * * case, viewed in totality and as of the time of the representation, reveal that [defendant's] attorney provided meaningful representation" (People v. Baldi, 54 N.Y.2d 137, 147; see, People v. Polanco, 216 A.D.2d 957; People v. Valentine, 212 A.D.2d 399).
We have reviewed the alleged instances of impropriety on the part of the prosecutor and conclude that, while some of the prosecutor's statements on summation exceeded the bounds of fair comment, reversal is not required because those statements to which defendant objected did not rise to a level such that they substantially prejudiced defendant (see, People v. Plant, 138 A.D.2d 968, lv denied 71 N.Y.2d 1031).
Defendant contends in his pro se supplemental brief that the court erred in failing to impose sanctions on the People for their failure to turn over the handwritten notes of a police investigator. The investigator destroyed his notes and conceded that there may have been discrepancies between the notes and subsequent depositions of eyewitnesses. Defendant, however, failed "to make an unambiguous objection when the Rosario violation was first noted" and thus the issue is not preserved for our review (People v. Rogelio, 79 N.Y.2d 843, 844). We have reviewed the remaining contentions, including those raised in defendant's pro se supplemental brief, and conclude that they are without merit.