Opinion
2013-05-3
The PEOPLE of the State of New York, Respondent, v. Lamario COTTO, Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June 7, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ryan D. Haggerty of Counsel), for Respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June 7, 2011. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ryan D. Haggerty of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ). Defendant failed to preserve for our review his contention that he was denied a fair trial *452by prosecutorial misconduct during summation inasmuch as he did not object to any of the alleged improprieties ( see People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769,lv. denied19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217;People v. Smith, 90 A.D.3d 1565, 1567, 935 N.Y.S.2d 775,lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009;People v. Mull, 89 A.D.3d 1445, 1446, 932 N.Y.S.2d 635,lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215). In any event, defendant's contention is without merit. Some of the prosecutor's allegedly improper comments were “ ‘either a fair response to defense counsel's summation or fair comment on the evidence’ ” ( People v. Green, 60 A.D.3d 1320, 1322, 875 N.Y.S.2d 390,lv. denied12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077), and the remaining alleged instances of misconduct were not so egregious as to deprive defendant of a fair trial ( see People v. Pringle, 71 A.D.3d 1450, 1451, 896 N.Y.S.2d 772,lv. denied15 N.Y.3d 777, 907 N.Y.S.2d 465, 933 N.E.2d 1058;People v. Scott, 60 A.D.3d 1483, 1484, 875 N.Y.S.2d 728,lv. denied12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594). Notably, two of the instances of alleged prosecutorial misconduct cited by defendant relate solely to the count of which he was acquitted. Finally, the sentence imposed is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.