PEOPLE v. TORTURICA (2005)

 In appeal No. 1, defendant appeals from an order denying his CPL 440.10 motion to vacate the judgment in appeal No. 2 and, in appeal No. 2, he appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and petit larceny (§ 155.25).   Defendant contends that County Court erred in denying his motion to disqualify the District Attorney's office because the victim's boyfriend is related to an employee of that office.   We reject that contention inasmuch as defendant failed to establish “actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522;  see People v. Martin, 2 A.D.3d 1336, 1337, 770 N.Y.S.2d 541, lv. denied 1 N.Y.3d 630, 777 N.Y.S.2d 29, 808 N.E.2d 1288).   We reject defendant's further contention that reversal is required based on the court's charge with respect to circumstantial evidence.   Although the court failed to use the words “moral certainty,” the court otherwise properly instructed the jury with respect to the burden of proof in this circumstantial evidence case (see People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228).   The contention of defendant concerning prosecutorial misconduct on summation is not preserved for our review (see CPL 470.05[2] ) and, in any event, we reject his contention that he was deprived of a fair trial by prosecutorial misconduct (see People v. Rubin, 101 A.D.2d 71, 78, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).   Contrary to defendant's further 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).   Finally, defendant 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 considered 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: