PEOPLE v. BISCOMBE

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

The PEOPLE, etc., respondent, v. Sherland BISCOMBE, appellant.

Decided: September 30, 2008

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jacqueline Linares, Keith Dolan, and Danielle Gurkin of counsel;  Gregory S. d'Incelli on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered September 21, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his challenges to remarks made by the prosecution on summation, as he did not object to any of the challenged remarks (see CPL 470.05[2];  People v. Gonzalez, 45 A.D.3d 696, 845 N.Y.S.2d 817).   In any event, the challenged remarks either were responsive to defense counsel's summation, were fair comment on the evidence, or constituted harmless error (see People v. Brown, 48 A.D.3d 590, 591, 849 N.Y.S.2d 901;  People v. Gonzalez, 45 A.D.3d at 696-697, 845 N.Y.S.2d 817).

 The defendant's contention that the People failed to prove by legally sufficient evidence that he intended to cause the victim's death is also unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that there is a valid line of reasoning and permissible inferences which could lead a rational person to conclude that the defendant intended to cause the victim's death (see People v. Hall, 242 A.D.2d 734, 664 N.Y.S.2d 930).   Moreover, upon the exercise of our factual review power (see CPL 470.15 [5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Viewing the totality of the evidence, the law, and the circumstances of the case, we find that the defendant was not deprived of the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant's remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, are without merit.

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