PEOPLE v. BROWN (2009)

 On appeal from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (Penal Law § 125.25 [1] ), defendant contends that he was denied a fair trial by prosecutorial misconduct during the cross-examination of a defense witness and on summation.   Defendant failed to preserve that contention for our review (see People v. Bankston, 63 A.D.3d 1616, 880 N.Y.S.2d 417;  People v. Haynes, 35 A.D.3d 1212, 1213, 825 N.Y.S.2d 627, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240) and, in any event, it is without merit.   The prosecutor properly attempted to impeach a defense witness whose testimony differed from his testimony as a prosecution witness in defendant's earlier trial, which resulted in a hung jury.   The prosecutor's comments on summation were fair response to defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Seeler, 63 A.D.3d 1595, 1596, 880 N.Y.S.2d 425).   Defendant also failed to preserve for our review his contention that certain alleged errors by County Court deprived him of a fair trial (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] ).

 By failing to move for a trial order of dismissal, defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, that challenge lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The testimony of the main prosecution witnesses was not incredible as a matter of law inasmuch as it was not “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448, lv. denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444;  see People v. Walker, 50 A.D.3d 1452, 1452-1453, 856 N.Y.S.2d 775, lv. denied 11 N.Y.3d 795, 866 N.Y.S.2d 622, 896 N.E.2d 108, 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450).   Also, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The credibility of the witnesses was an issue for the jury to determine, and we perceive no basis for disturbing that determination (see People v. Massey, 61 A.D.3d 1433, 877 N.Y.S.2d 589, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018;  People v. Scott, 60 A.D.3d 1396, 1397, 876 N.Y.S.2d 271, lv. denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937).

 Defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to object to the prosecutor's comments on summation and failure to move for a trial order of dismissal.   We reject that contention, inasmuch as such an objection and motion would have had no chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Francis, 63 A.D.3d 1644, 879 N.Y.S.2d 880).   Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant 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).   Defendant failed to preserve for our review his further contention that the court erred in its Ventimiglia ruling (see People v. McClain, 250 A.D.2d 871, 872, 672 N.Y.S.2d 503, lv. denied 92 N.Y.2d 901, 680 N.Y.S.2d 65, 702 N.E.2d 850), 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, the court did not abuse its discretion in denying his request for expert fees for an investigator inasmuch as he failed to establish that those fees were necessary (see People v. Koberstein, 262 A.D.2d 1032, 1033, 693 N.Y.S.2d 366, lv. denied 94 N.Y.2d 798, 700 N.Y.S.2d 432, 722 N.E.2d 512;  People v. Drumgoole, 234 A.D.2d 888, 889-890, 652 N.Y.S.2d 443, lv. denied 89 N.Y.2d 1011, 658 N.Y.S.2d 249, 680 N.E.2d 623;  People v. Barber, 154 A.D.2d 882, 547 N.Y.S.2d 259, lv. denied 75 N.Y.2d 810, 552 N.Y.S.2d 560, 551 N.E.2d 1238, 75 N.Y.2d 917, 555 N.Y.S.2d 35, 554 N.E.2d 72;  see generally County Law § 722-c).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: