PEOPLE v. STOKES (2005)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of manslaughter in the first degree (Penal Law § 125.20[1] ). Defendant was sentenced to a determinate term of imprisonment of 20 years and a five-year period of postrelease supervision.   We reject the contention of defendant that he was denied a fair trial based on prosecutorial misconduct.   It cannot be said that the prosecutor's conduct “ ‘caused such substantial prejudice to the defendant that he [was] denied due process of law’ ” (People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).   We further conclude that defendant was afforded meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 711-712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defense counsel made relevant motions, cross-examined witnesses and ably presented a justification defense, which ultimately was rejected by the jury.   We note, however, that “[i]n reviewing claims of ineffective assistance care must be taken to ‘avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' ” (Satterfield, 66 N.Y.2d at 798, 497 N.Y.S.2d 903, 488 N.E.2d 834).   Also contrary to defendant's contention, County Court properly charged the jury that it should evaluate defendant's actions in the light of what a “reasonable person in the defendant's position, knowing what the defendant knew and being in the same circumstances, would have believed” (see People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21;  People v. Goetz, 68 N.Y.2d 96, 114, 506 N.Y.S.2d 18, 497 N.E.2d 41).   The verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

We have reviewed defendant's remaining contention and conclude that it is without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: