PEOPLE v. McGRATH

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

The PEOPLE, etc., respondent, v. Peter McGRATH, appellant.

Decided: July 25, 2005

HOWARD MILLER, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, and PETER B. SKELOS, JJ. Dennis P. Portararo, Chester, N.Y., for appellant, and appellant pro se. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered June 20, 2002, convicting him of murder in the second degree (six counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was denied the effective assistance of counsel is without merit.   On this record, we find that he was afforded meaningful representation (see People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213, 2005 WL 1397044 [June 14, 2005];  People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883;  People v. Henry, 95 N.Y.2d 563, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Moreover, the defendant's contention that he was denied a fair trial as a result of certain remarks by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Rosario, 195 A.D.2d 577, 601 N.Y.S.2d 836).   In any event, the comments made by the prosecutor during summation were either fair comment on the evidence, responsive to the defendant's summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Baker, 251 A.D.2d 592, 673 N.Y.S.2d 606;  People v. Harris, 209 A.D.2d 432, 619 N.Y.S.2d 589;  People v. Gibbs, 166 A.D.2d 454, 560 N.Y.S.2d 500), or not so prejudicial as to constitute reversible error in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Furthermore, there is no indication in the sentencing minutes that the defendant was improperly sentenced on the basis of uncharged crimes (see People v. Carroll, 181 A.D.2d 904, 582 N.Y.S.2d 210;  People v. Restrepo, 165 A.D.2d 838, 560 N.Y.S.2d 402).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

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