PEOPLE v. ZAPATA (2000)

Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered September 16, 1996, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, and order, same court and Justice, entered on or about March 29, 1999, which denied defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10, unanimously affirmed.

 The record establishes that defendant received meaningful representation from his trial attorney.   We note that, contrary to defendant's argument, the detectives' 1991 DD-5 reports do not suggest that the witness's attention had been drawn to the omitted matter.   In any event, counsel did in fact elicit the omission and made use of it during summation.   Since the challenged portions of the prosecutor's summation remarks constituted fair comment on the evidence and proper response to the defense summation, counsel's failure to lodge objections does not demonstrate ineffectiveness.   Based on our examination of the police reports in question, we reject defendant's claim that these reports suggest that counsel should have raised an issue of prosecutorial misconduct.   We have considered and rejected defendant's remaining arguments on this subject.

 We perceive no abuse of sentencing discretion, and conclude that the sentence was not based on improper criteria.

MEMORANDUM DECISION.