PEOPLE v. ROBINSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Joseph ROBINSON, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, WISNER, SCUDDER and BALIO, JJ. Richard P. Ferris, Utica, for Defendant-Appellant. Matthew P. Worth, Utica, for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03[2] ).   There is no merit to defendant's contention that the verdict is contrary to the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We agree with defendant that the People erred in failing to provide the defense with Brady material prior to trial.   The error, however, is harmless.   The People presented overwhelming proof of defendant's guilt, i.e., eyewitness testimony identifying defendant as the assailant, and thus there is no reasonable possibility that the error contributed to the verdict (see, People v. Pressley, 91 N.Y.2d 825, 827, 666 N.Y.S.2d 555, 689 N.E.2d 525).

 We reject the contention of defendant that he was denied a fair trial by prosecutorial misconduct on summation.   With one exception, the prosecutor's comments on summation constituted fair comment on the evidence or fair response to defense counsel's summation (see, People v. Waller, 239 A.D.2d 934, 661 N.Y.S.2d 818, lv. denied 90 N.Y.2d 1015, 666 N.Y.S.2d 110, 688 N.E.2d 1394;  People v. Owusu, 234 A.D.2d 893, 894, 652 N.Y.S.2d 914, lv. denied 89 N.Y.2d 1039, 659 N.Y.S.2d 870, 681 N.E.2d 1317).   That isolated error, however, was not so egregious as to deny defendant a fair trial (see, People v. Gonzalez, 206 A.D.2d 946, 947, 615 N.Y.S.2d 191, lv. denied 84 N.Y.2d 867, 618 N.Y.S.2d 13, 642 N.E.2d 332).

 County Court did not abuse its discretion in denying defendant's request to retain an expert on eyewitness identifications (see, People v. Mooney, 76 N.Y.2d 827, 828, 560 N.Y.S.2d 115, 559 N.E.2d 1274;  People v. Dunlap, 161 A.D.2d 1114, 555 N.Y.S.2d 492).   Defendant's contention that the court erred in admitting evidence of an uncharged crime is not preserved for our review (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] ).   The sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: