PEOPLE v. DUNN (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered February 23, 2006, convicting her of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that she was deprived of a fair trial because the prosecutor made improper remarks during her opening statement and summation and otherwise engaged in misconduct during the trial is unpreserved for appellate review (see CPL 470.05[2];  People v. Hollenquest, 48 A.D.3d 592, 849 N.Y.S.2d 899, lv. denied 10 N.Y.3d 864, 860 N.Y.S.2d 490, 890 N.E.2d 253).   In any event, the challenged remarks and conduct either were responsive to arguments made by defense counsel, constituted fair comment on the evidence, or otherwise did not deprive the defendant of a fair trial (see People v. Olivo, 23 A.D.3d 584, 806 N.Y.S.2d 594).

The defendant's contention that she was denied the effective assistance of counsel based solely on her attorney's failure to object to the alleged prosecutorial misconduct is without merit (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Robbins, 48 A.D.3d 711, 850 N.Y.S.2d 912, lv. denied 10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258;  People v. Gonzalez, 44 A.D.3d 790, 791, 843 N.Y.S.2d 417;  People v. Serrano, 163 A.D.2d 66, 68, 557 N.Y.S.2d 330).