PEOPLE v. PARSONS (2006)

 Defendant appeals from a judgment convicting him of five counts each of felony murder in the second degree (Penal Law § 125.25[3] ) and arson in the first degree (§ 150.20[1] ), arising from the deaths of his wife and their four children in a house fire.   Contrary to defendant's contention, 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).   Here, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally id.).   Defendant failed to preserve for our review his further contention that the evidence is legally insufficient to establish that he set the fire inasmuch as his motion to dismiss was not specifically directed at that alleged insufficiency (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Weaver, 28 A.D.3d 1205, 812 N.Y.S.2d 921) and, in addition, his contention is unpreserved for our review because he failed to renew his motion after presenting evidence at the close of the People's case (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Maryon, 20 A.D.3d 911, 913, 797 N.Y.S.2d 684, lv. denied 5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143).   In any event, we conclude that defendant's contention lacks merit (see generally People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327;  Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant also failed to preserve for our review his contention that reversal is required based on prosecutorial misconduct on summation (see CPL 470.05[2] ) and, in any event, his contention lacks merit.   Reversal based on prosecutorial misconduct is “ ‘mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been 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, quoting People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307), and there was no such prejudice here.   Indeed, we note that the comments of the prosecutor on summation were “within the wide rhetorical bounds afforded the prosecutor” in responding to defense counsel's summation (People v. Tardbania, 130 A.D.2d 954, 955, 515 N.Y.S.2d 936, affd. 72 N.Y.2d 852, 532 N.Y.S.2d 354, 528 N.E.2d 507;  see People v. Tolliver, 248 A.D.2d 988, 670 N.Y.S.2d 130, lv. denied 91 N.Y.2d 1013, 676 N.Y.S.2d 141, 698 N.E.2d 970;  see generally People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

 We reject defendant's contention that County Court erred in admitting evidence of domestic violence.  “In a domestic violence homicide, ․ it is highly probative-quite often far outweighing any prejudice-that a couple's marriage was strife-ridden and that defendant previously struck and/or threatened the spouse-victim․ Indeed, it has also been held that such evidence in like contexts is highly probative of the defendant's motive and [i]s either directly related to or inextricably interwoven ․ with the issue of his [or her] identity as the killer” (People v. Bierenbaum, 301 A.D.2d 119, 146, 748 N.Y.S.2d 563, lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281, cert. denied 540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40 [internal quotation marks omitted] ).   Contrary to the further contention of defendant, viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that he received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: