Opinion
February 16, 2000
Appeal from Judgment of Oneida County Court, Donalty, J. — Murder, 2nd Degree.
PRESENT: WISNER, J. P., PIGOTT, JR., HURLBUTT AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant's conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant failed to preserve for our review his contention that hearsay statements made to witnesses by an individual implicating himself in the shooting should have been received as declarations against penal interest ( see, People v. Steward, 256 A.D.2d 1147, 1148, lv denied 93 N.Y.2d 879). In any event, defendant failed to demonstrate that the declarant was unavailable as a witness at trial ( see, People v. Thomas, 68 N.Y.2d 194, 197, cert denied 480 U.S. 948; People v. Settles, 46 N.Y.2d 154, 167; People v. Dove, 262 A.D.2d 995 [decided June 18, 1999], lv denied 94 N.Y.2d 822 [decided Nov. 3, 1999]).
Defendant also failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation, including instances in which the prosecutor allegedly vouched for the credibility of witnesses and denigrated the defense ( see, People v. Cox, 256 A.D.2d 1244, lv denied 93 N.Y.2d 923). In any event, that contention lacks merit. Certain of the prosecutor's comments were in direct response to defense counsel's statements regarding the credibility of prosecution witnesses ( see, People v. Halm, 81 N.Y.2d 819, 821) and "did not exceed the broad bounds of rhetorical comment permissible in closing argument" ( People v. Galloway, 54 N.Y.2d 396, 399). Although we agree that the prosecutor improperly impugned the defense, those comments did not constitute "a pervasive pattern of misconduct sufficient to deny defendant due process of law" ( People v. Chase, 265 A.D.2d 844 [decided Oct. 1, 1999]; see, People v. Scutt, 254 A.D.2d 807, 808, lv denied 92 N.Y.2d 1038).
Defendant failed to preserve for our review his contentions that the conduct of County Court denied him a fair trial and that the court erred in admitting certain evidence ( see, CPL 470.05), and 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]).