PEOPLE v. MELENDEZ (2004)

 Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[2] ), criminal possession of a weapon in the second degree (§ 265.03[2] ) and criminal possession of a weapon in the third degree (§ 265.02 [4] ).   Defendant contends that the evidence is legally insufficient to establish his guilt of depraved indifference murder.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we reject that contention and conclude that defendant's act of holding a gun that ultimately discharged close to the victim's face in the course of a scuffle was an act sufficiently reckless to create a grave and substantial risk of death (see People v. Flowers, 289 A.D.2d 504, 734 N.Y.S.2d 638, lv. denied 97 N.Y.2d 754, 742 N.Y.S.2d 614, 769 N.E.2d 360).   We also reject defendant's contention that the verdict is against the weight of the evidence.   Upon our review of the record, we cannot say that the jury failed to give the evidence the weight it should be accorded (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We reject defendant's contention that the jury charge concerning defendant's justification defense was improper.   When viewed in its entirety, County Court's charge on justification was “a correct statement of the law” (People v. Coleman, 70 N.Y.2d 817, 819, 523 N.Y.S.2d 433, 517 N.E.2d 1319).   We reject the further contention of defendant that he was deprived of a fair trial based upon comments made by the prosecutor during her summation.   Defendant complains of three instances in which the prosecutor implied that defendant was a liar, two of which are unpreserved for our review (see CPL 470.05[2] ) and which we decline to exercise our power to review as a matter of discretion in the interest of justice (see 470.15[6][a] ).   In any event, we conclude that the prosecutor's summation represented a fair response to defense counsel's summation and did not exceed the bounds of legitimate advocacy (see People v. Sinclair, 231 A.D.2d 926, 647 N.Y.S.2d 896;  see also People v. Russo, 201 A.D.2d 512, 513, 607 N.Y.S.2d 413, affd. 85 N.Y.2d 872, 626 N.Y.S.2d 51, 649 N.E.2d 1195).   Defendant also complains of comments made by the prosecutor concerning the victim's family.   While the comments were improper, any prejudice was alleviated by the court's instruction that the jury may not consider sympathy (see People v. Caminero, 193 A.D.2d 547, 548, 597 N.Y.S.2d 708, lv. denied 81 N.Y.2d 1070, 601 N.Y.S.2d 590, 619 N.E.2d 668;  People v. Trail, 172 A.D.2d 320, 568 N.Y.S.2d 366, lv. denied 78 N.Y.2d 975, 574 N.Y.S.2d 955, 580 N.E.2d 427;  see also People v. Smith, 217 A.D.2d 221, 238-239, 635 N.Y.S.2d 824, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270) and, in any event, the comments were not so egregious as to deprive defendant of a fair trial (see People v. Quinones, 5 A.D.3d 1093, 1094, 773 N.Y.S.2d 671).   Lastly, we reject the contention of defendant that he did not receive 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).

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

MEMORANDUM: