The People, etc., respondent, v. Rafael Perez, appellant.

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

The People, etc., respondent, v. Rafael Perez, appellant.

2008-01817 (Ind.No. 10930/06)

Decided: October 26, 2010

WILLIAM F. MASTRO, J.P. JOSEPH COVELLO THOMAS A. DICKERSON SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Sullivan & Cromwell LLP [Rhiana L. Swartz], of counsel), for respondent.

Argued-September 30, 2010


Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered February 21, 2008, convicting him of burglary 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 contention that he was deprived of a fair trial as a result of prosecutorial misconduct during summation.   The defendant raised no objection during summation to the comments challenged on appeal, and failed to move for a mistrial (see CPL 470.05 [2];  People v. Garguilio, 57 AD3d 797, 798).   In any event, most of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, fair comment on the evidence, or responsive to arguments and theories presented in the defense summation (see People v. Halm, 81 N.Y.2d 819, 821;  People v. Gordon, 306 A.D.2d 422;  People v. Turner, 214 A.D.2d 594).   Any error resulting from the remaining challenged remarks was harmless (see People v. Smalls, 65 AD3d 708;  People v. Dorgan, 42 AD3d 505).

In light of his counsel's zealous and competent defense throughout the course of the trial, we reject the defendant's contention that his counsel's failure to object to the challenged summation remarks constituted ineffective assistance of counsel (see People v. Williams, 8 NY3d 854, 855-856;  People v. Taylor, 1 NY3d 174, 176;  People v. Tonge, 93 N.Y.2d 838, 840;  People v Gonzalez, 44 AD3d 790, 791).

Finally, the sentence imposed was not excessive (see People v. Martinez, 58 AD3d 754, 756;  People v. Jordan, 36 AD3d 948;  People v. Ochoa, 179 A.D.2d 689, 690;  People v. Marti, 131 A.D.2d 597, 598).



Matthew G. Kiernan

Clerk of the Court

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