PEOPLE v. ETORIA

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

The PEOPLE, etc., respondent, v. Orville ETORIA, appellant.

Decided: November 29, 1999

GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ. M. Sue Wycoff, New York, N.Y. (Paul Wiener of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Caroline R. Donhauser, and Rogers & Wells, LLP [Kelley P. Swift and Mary T. Ambron] of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered May 15, 1997, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant argues that remarks by the prosecutor during the opening and closing statements constituted reversible error.   To the extent the issue is preserved for appellate review, it is without merit.

The prosecutor is obligated to delineate in the opening statement what the People intend to prove (see, CPL 260.30[3];  People v. Kurtz, 51 N.Y.2d 380, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301).   The prosecutor alleged that the defendant inflicted three gunshot wounds at close range, causing the victim's death.   The prosecutor's description of how the wounds were inflicted and her characterization of the defendant's actions as “cold, calculated execution” accurately described what the People intended to prove and prepared the jury to resolve the factual issues of the trial (see, People v. George, 108 A.D.2d 870, 485 N.Y.S.2d 366).   Similarly, the prosecutor's remarks during summation were fair comments on the evidence (see, People v. Zephir, 226 A.D.2d 408, 640 N.Y.S.2d 584;  People v. Staley, 130 A.D.2d 601, 515 N.Y.S.2d 309).

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

MEMORANDUM BY THE COURT.

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