PEOPLE v. ORTIZ (2007)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered February 28, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 find that it was legally sufficient to establish beyond a reasonable doubt that the defendant possessed the intent to kill the decedent (see Penal Law § 125.25[1];  People v. Pabellon, 198 A.D.2d 87, 88, 603 N.Y.S.2d 840;  People v. Angel, 185 A.D.2d 356, 358, 586 N.Y.S.2d 622;  People v. Reyes, 108 A.D.2d 934, 485 N.Y.S.2d 827).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).

 The defendant's contention that the trial court erred in permitting a witness and the prosecutor to repeatedly refer to the defendant by his nickname is unpreserved for appellate review (see CPL 470.05[2];  People v. Crowder, 2 A.D.3d 454, 454-455, 767 N.Y.S.2d 805;  People v. Caver, 302 A.D.2d 604, 758 N.Y.S.2d 335).   In any event, any error in allowing the references was harmless, as the evidence of the defendant's guilt, without reference to the alleged error, was overwhelming, and there is no significant probability that the error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Santiago, 255 A.D.2d 63, 66, 691 N.Y.S.2d 22).

 The defendant contends that a particular remark made by the prosecutor during his opening statement, as well as certain remarks the prosecutor made on summation, were improper.   Since the defendant never objected to the remark made during the prosecutor's opening statement, his contention with respect to that remark is unpreserved for appellate review (see CPL 470.05[2];  People v. Arroyo, 309 A.D.2d 870, 871, 766 N.Y.S.2d 51).   To the extent that the challenged remarks might have been improper, we find that they constituted harmless error (see People v. Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Adamo, 309 A.D.2d 808, 809, 765 N.Y.S.2d 651;  People v. Diaz, 239 A.D.2d 518, 519, 658 N.Y.S.2d 945).

The defendant was not deprived of his right to the effective assistance of counsel.   Taking into consideration the totality of the evidence, the law, and the circumstances of the case, it is evident that trial counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 86, 455 N.Y.S.2d 675).