Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Niagara County, Mahoney, J. — Criminal Sale Controlled Substance, 2nd Degree.
PRESENT: GREEN, J. P., PINE, WISNER, PIGOTT, JR., AND CALLAHAN, JJ.
Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contentions that the prosecutor's improper comments during summation deprived him of a fair trial ( see, People v. Dixon, ___ A.D.2d ___ [decided herewith]); that the evidence is insufficient to support his conviction of tampering with a witness in the third degree ( see, People v. Gray, 86 N.Y.2d 10, 19); and that the prosecution's failure to preserve and disclose notes of a witness that arguably constituted Rosario material, deprived him of a fair trial ( see, People v. Graves, 85 N.Y.2d 1024, 1027). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). We reject defendant's contention that the jury's verdict is against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Burks, 227 A.D.2d 905, lv denied 88 N.Y.2d 981). Finally, the evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defense counsel provided meaningful representation ( see, People v. Flores, 84 N.Y.2d 184, 187; People v. Baldi, 54 N.Y.2d 137, 147).