PEOPLE v. EVANS (1997)

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03).   His contentions that the verdict is not supported by legally sufficient evidence that he acted with intent and is contrary to the weight of the evidence lack merit.   Four eyewitnesses testified that defendant argued with his girlfriend minutes before the shooting, fired a shot into the kitchen floor to scare her, warned her that she could be shot and then held the gun inches from her head and fired the fatal shot.   Defendant admitted that he had argued with her and that he was angry.   He also testified that, after the shooting, he left the scene and disposed of the gun.   The jury could infer from those circumstances that defendant intended to kill his girlfriend (see, People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Wallace, 217 A.D.2d 918, 918-919, 630 N.Y.S.2d 439, lv. denied 86 N.Y.2d 847, 634 N.Y.S.2d 457, 658 N.E.2d 235), and we conclude that the verdict is not contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 The prosecutor did not engage in misconduct by questioning prospective jurors about their potential reactions to variations in the testimony of eyewitnesses and whether they would categorically reject the testimony of a witness who had a prior conviction and who testified concerning the use of cocaine.   The prosecutor merely engaged in “the standard trial tactic of giving the panel [of prospective jurors] a preview of the weaknesses in [his] case and gauging the reaction” (People v. Porter, 226 A.D.2d 275, 277, 641 N.Y.S.2d 283).

 We reject the contention that the prosecutor engaged in misconduct when, during his opening statement, he referred to certain conduct of defendant committed prior to the shooting but failed to present evidence of that conduct during the trial.   Absent bad faith or undue prejudice, reversal is not required because the prosecutor fails to prove every statement or representation made during an opening statement (see, People v. De Tore, 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61, cert. denied sub nom. Wedra v. New York, 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300;  People v. Mariani, 203 A.D.2d 717, 720, 610 N.Y.S.2d 967, lv. denied 84 N.Y.2d 869, 618 N.Y.S.2d 15, 642 N.E.2d 334).

 Although the prosecutor engaged in misconduct by his overzealous cross-examination of defendant in the nature of character assassination and by his repeated extraneous sarcastic remarks during summation (see, People v. Hicks, 102 A.D.2d 173, 182-183, 478 N.Y.S.2d 256;  see also, People v. McCann, 90 A.D.2d 554, 455 N.Y.S.2d 134), County Court sustained prompt objections to the improper questioning, and defense counsel did not request curative instructions, move for a mistrial or object to any of the summation comments.   Further, proof of defendant's guilt is overwhelming, and we cannot conclude that the misconduct was so egregious that defendant was denied a fair trial (see, People v. Curley, 159 A.D.2d 969, 970, 552 N.Y.S.2d 768, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 895, 557 N.E.2d 1191;  cf., People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307).

 There is no merit to the contention that defendant was denied effective assistance of counsel, and we conclude that the sentence is not unduly harsh or severe.   However, we modify the judgment by vacating that portion of the sentence awarding restitution, and we remit the matter to Onondaga County Court to determine whether restitution should be awarded and, if so, in what amount (see, People v. Stone, 225 A.D.2d 1067, 1068, 639 N.Y.S.2d 603, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 460, 668 N.E.2d 431).   Although a defendant may be compelled to pay restitution to a victim's family for hospital or funeral expenses (see, People v. Canada, 156 A.D.2d 1001, 1002, 549 N.Y.S.2d 286, lv. denied 75 N.Y.2d 964, 556 N.Y.S.2d 249, 555 N.E.2d 621), here there is no proof that the victim's family incurred any expense.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for further proceedings.

MEMORANDUM.