People v. Birch

284 A.D.2d 405, 726 N.Y.S.2d 279, 2001 N.Y. App. Div. LEXIS 6086

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Reichbach, J.), rendered October 18, 1999, convicting him of kidnapping in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contentions regarding prosecutorial misconduct during summation are unpreserved for appellate review (see, CPL 470.05 [2]; People v Dien, 77 NY2d 885; People v Nuccie, 57 NY2d 818). In any event, the allegedly inflammatory and prejudicial remarks constituted either fair comment on the evidence (see, People v Ashwal, 39 NY2d 105), or a fair response to the defense counsel’s summation (see, People v Galloway, 54 NY2d 396).

The defendant contends that he was denied the effective assistance of counsel at trial. However, to prevail on such a claim, the defendant must overcome the strong presumption of effectiveness (see, People v Baldi, 54 NY2d 137; People v Myers, 220 AD2d 461). Upon our review of the record, we are satisfied that the defendant received the effective assistance of counsel (see, People v Myers, supra).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are without merit. Santucci, J. P., Goldstein, H. Miller and Crane, JJ., concur.