PEOPLE v. PLOSKA (2008)

Appeal by the defendant from a judgment of the County Court, Putnam County (Rooney, J.), rendered June 14, 2005, convicting him of sexual abuse in the first degree (two counts) and endangering the welfare of a child (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, under the circumstances of this case, the testimony offered by the People on rebuttal was admissible for the purpose of disproving his claim that, as a result of brain damage caused by the onset of multiple sclerosis, he was not guilty by reason of mental disease or defect (see Penal Law § 40.15;  People v. Santarelli, 49 N.Y.2d 241, 425 N.Y.S.2d 77, 401 N.E.2d 199;  People v. Schicchi, 13 A.D.3d 470, 787 N.Y.S.2d 338).   The record does not support the defendant's contention that the court failed to weigh the probative value of the testimony with the potential for prejudice (cf. People v. Santarelli, 49 N.Y.2d 241, 425 N.Y.S.2d 77, 401 N.E.2d 199).

 The defendant's further contention that the prosecutor, during summation, deprived him of a fair trial by making prejudicial comments, ridiculing the defense, and inflaming the emotions of the jury, is without merit.   The comments alleged to be inflammatory and prejudicial were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), or harmless (see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant was not denied the effective assistance of counsel (see People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123;  People v. Benevento, 91 N.Y.2d 708, 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, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.