The People, etc., respondent, v. Darwin Roque, appellant. (2010)

Argued-May 17, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered February 7, 2007, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Brewster, 69 AD3d 750;  People v. Miller, 59 AD3d 463, 464).   In any event, most of the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to the defense counsel's summation (see People v. Ashwal, 39 N.Y.2d 105, 109-110;  People v. Torres, 72 AD3d 709;  People v. Charles, 57 AD3d 556).  “To the extent that the prosecutor may have exceeded the bounds of permissible rhetorical comment, any error was harmless” (People v. Carter, 36 AD3d 624, 624;  see People v. Crimmins, 36 N.Y.2d 230;  People v. Charles, 57 AD3d at 556-557).

The defendant was not denied the effective assistance of counsel, as the record reveals that defense counsel provided meaningful representation (see People v. Henry, 95 N.Y.2d 563;  People v. Benevento, 91 N.Y.2d 708;  People v. Martinez, 69 AD3d 958, 959, lv denied 14 NY3d 842).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contentions either are without merit or relate to harmless error.

SANTUCCI, J.P., ANGIOLILLO, DICKERSON and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court