People v. Chislum

244 A.D.2d 944, 665 N.Y.S.2d 183, 1997 N.Y. App. Div. LEXIS 12323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of two counts of murder in the second degree (Penal Law § 125.25 [1], [3]) and other crimes, defendant contends that he was deprived of a fair trial by prosecutorial misconduct and an erroneous jury charge. Because defendant failed to object to any of the alleged instances of prosecutorial misconduct and to the charge as given, that contention is unpreserved for our review (see, CPL 470.05 [2]). Were we to exercise our power to review the contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]), we would conclude that it lacks merit. Although the prosecutor improperly suggested to the jury that defendant had a reason to lie and had tailored his trial testimony to fit the prosecution’s proof (see, People v Paul, 229 AD2d 932, 933; People v Smith, 192 AD2d 806, 808, lv denied 81 NY2d 1080), those isolated instances of prosecutorial misconduct did not cause “such substantial prejudice to the defendant that he has been denied due process of law” (People v Mott, 94 AD2d 415, 419; see, People v Rubin, 101 AD2d 71, 77).

Defendant further contends that Supreme Court erred in its charge. Defendant consented to that charge, thereby waiving any claim of error. Defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Monroe County, Scudder, J.—Murder, 2nd Degree.) Present— Pine, J. P., Lawton, Hayes, Wisner and Fallon, JJ.