PEOPLE v. DONALDSON (2007)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25 [2] ).   Defendant's contention that County Court erred in admitting testimony concerning uncharged crimes, allegedly committed by defendant the day after the burglary, is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to the contention of defendant, he received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The record demonstrates that defense counsel represented defendant “ diligently and vigorously during the course of the entire trial” (People v. Flores, 84 N.Y.2d 184, 189, 615 N.Y.S.2d 662, 639 N.E.2d 19).   Contrary to the further contentions of defendant, the conviction is supported by legally sufficient evidence and 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).

Defendant failed to preserve for our review his contention that prosecutorial misconduct during summation deprived him of a fair trial (see CPL 470.05 [2];  People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356).   In any event, that contention is without merit.   The court issued instructions after the prosecutor's summation and again during jury deliberations that sufficiently alleviated any prejudice that may have resulted from the prosecutor's comments on summation (see People v. Warren, 27 A.D.3d 496, 498, 812 N.Y.S.2d 569, lv. denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290).

Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: