People v. Dunning , 148 A.D.3d 1047 ( 2017 )

People v Dunning (2017 NY Slip Op 02055)

People v Dunning

2017 NY Slip Op 02055

Decided on March 22, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
ROBERT J. MILLER
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON, JJ.

2015-03644
(Ind. No. 10521/13)

[*1]The People of the State of New York, respondent,

v

Martel Dunning, appellant.

Lynn W. L. Fahey, New York, NY (Golnaz Fakhimi of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jonathan K. Yi of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered April 15, 2015, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his right to due process was violated by the prosecutor's misconduct on summation is unpreserved for appellate review (CPL 470.05[2]), as the defendant failed to object, request curative instructions, or timely move for a mistrial (see People v Owens, 129 AD3d 995; People v Perez, 77 AD3d 974), and we decline to review the contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c]; [6]; People v Jones, 139 AD3d 878).

The defendant's contention that he was deprived of his right to the effective assistance of counsel under the New York State Constitution is without merit. The defendant failed to demonstrate "the absence of strategic or other legitimate explanations" for counsel's alleged shortcomings (People v Rivera, 71 NY2d 705, 709; see People v King, 27 NY3d 147, 159; cf. People v Fisher, 18 NY3d 964, 967). Since " our state standard . . . offers greater protection than the federal test,'" we necessarily reject the defendant's federal constitutional challenge by determining that he was not denied meaningful representation under the State Constitution (People v Wragg, 26 NY3d 403, 412, quoting People v Caban, 5 NY3d 143, 156).

HALL, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court