Opinion
KA 99-1651
February 1, 2002.
Appeal from a judgment of Monroe County Court (Marks, J.), entered December 1, 1999, convicting defendant after a jury trial of, inter alia, sodomy in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHARLES LATTERELL, DEFENDANT-APPELLANT PRO SE.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (AMY I. MOLLOY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of sodomy in the first degree (Penal Law § 130.50), attempted sodomy in the first degree (Penal Law § 110.00, 130.50) and assault in the third degree (Penal Law § 120.00) and sentencing him as a persistent violent felony offender to an aggregate term of incarceration of 45 years to life. Defendant failed to object to certain of the prosecutor's allegedly inflammatory comments on summation and thus his contention that he was deprived of a fair trial based on those comments is unpreserved for our review ( see, People v. Bell, 234 A.D.2d 915, 916, lv denied 89 N.Y.2d 1009). County Court sustained defendant's objections to the remaining allegedly inflammatory comments of the prosecutor on summation and defendant failed to object further or to move for a mistrial. Thus, defendant's contention with respect to those comments also is unpreserved for our review ( see, People v. Ceballo, 242 A.D.2d 428, 428-429, lv denied 91 N.Y.2d 870). In any event, defendant's contention lacks merit. The allegedly inflammatory remarks were fair comment on the evidence ( see, People v. Ashwal, 39 N.Y.2d 105, 109). The sentence is neither unduly harsh nor severe.
Defendant contends in the pro se supplemental brief that his trial counsel was ineffective. Based on the record before us, viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 147; see also, People v. Satterfield, 66 N.Y.2d 796, 798-800). To the extent that defendant contends counsel failed to obtain expert testimony, that contention involves matters outside the record and thus must be raised by a motion pursuant to CPL article 440 ( see, People v. Chiera, 255 A.D.2d 685, 686).