People v. Zapata

Appellate Division of the Supreme Court of New York

People v. Zapata

268 A.D.2d 242, 702 N.Y.S.2d 3, 2000 N.Y. App. Div. LEXIS 65

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 6, 2000

StatusPublished

This text of 268 A.D.2d 242 (People v. Zapata) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Zapata, 268 A.D.2d 242, 702 N.Y.S.2d 3, 2000 N.Y. App. Div. LEXIS 65 (N.Y. Ct. App. 2000).

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Opinion

—Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered September 16, 1996, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, and order, same court and Justice, entered on or about March 29, 1999, which denied defendant’s motion to vacate the judgment of conviction pursuant to CPL 440.10, unanimously affirmed.

The record establishes that defendant received meaningful representation from his trial attorney. We note that, contrary to defendant’s argument, the detectives’ 1991 DD-5 reports do not suggest that the witness’s attention had been drawn" to the omitted matter. In any event, counsel did in fact elicit the omission and made use of it during summation. Since the challenged portions of the prosecutor’s summation remarks constituted fair comment on the evidence and proper response to the defense summation, counsel’s failure to lodge objections does not demonstrate ineffectiveness. Based on our examination of the police reports in question, we reject defendant’s claim that these reports suggest that counsel should have raised an issue of prosecutorial misconduct. We have considered and rejected defendant’s remaining arguments on this subject.

We perceive no abuse of sentencing discretion,-and conclude that the sentence was not based on improper criteria. Concur— Rosenberger, J. P., Nardelli, Ellerin, Saxe and Buckley, JJ.

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—Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered September 16, 1996, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, and order, same court and Justice, entered on or about March 29, 1999, which denied defendant’s motion to vacate the judgment of conviction pursuant to CPL 440.10, unanimously affirmed.

The record establishes that defendant received meaningful representation from his trial attorney. We note that, contrary to defendant’s argument, the detectives’ 1991 DD-5 reports do not suggest that the witness’s attention had been drawn" to the omitted matter. In any event, counsel did in fact elicit the omission and made use of it during summation. Since the challenged portions of the prosecutor’s summation remarks constituted fair comment on the evidence and proper response to the defense summation, counsel’s failure to lodge objections does not demonstrate ineffectiveness. Based on our examination of the police reports in question, we reject defendant’s claim that these reports suggest that counsel should have raised an issue of prosecutorial misconduct. We have considered and rejected defendant’s remaining arguments on this subject.

We perceive no abuse of sentencing discretion,-and conclude that the sentence was not based on improper criteria. Concur— Rosenberger, J. P., Nardelli, Ellerin, Saxe and Buckley, JJ.

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Bluebook (online)

268 A.D.2d 242, 702 N.Y.S.2d 3, 2000 N.Y. App. Div. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-zapata-nyappdiv-2000.