Opinion
03-30-2016
The PEOPLE, etc., respondent, v. Omo DEOKORO, appellant.
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered May 10, 2010, convicting him of murder in the second degree, criminal possession of a weapon in the second degree (two counts), and tampering with physical evidence (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant argues on appeal that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during summation. This contention is without merit, as most of the challenged remarks were fair comment on the evidence and fair response to the arguments made by defense counsel in summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Willis, 122 A.D.3d 950, 950, 997 N.Y.S.2d 472 ). To the extent that some of the prosecutor's summation remarks were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Roscher, 114 A.D.3d 812, 813, 980 N.Y.S.2d 146 ; People v. Walston, 196 A.D.2d 903, 602 N.Y.S.2d 152 ).
The defendant's contention that the Supreme Court failed to comply with the procedure for handling jury notes set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 with respect to a note indicating the jury was deadlocked is unpreserved for appellate review and does not warrant the invocation of this Court's interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Matos, 133 A.D.3d 885, 888, 21 N.Y.S.3d 267 ; People v. Lopez, 200 A.D.2d 767, 768, 607 N.Y.S.2d 368 ). The alleged failure to comply with the O'Rama procedure did not constitute a mode of proceedings error which would obviate the preservation requirement because it is evident from the record that the Supreme Court fulfilled its core responsibilities under CPL 310.30 by providing defense counsel with meaningful notice of the content of the jury note at issue (see People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ; People v. Ramirez, 15 N.Y.3d 824, 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 ; People v. Kadarko, 14 N.Y.3d 426, 429–430, 902 N.Y.S.2d 828, 928 N.E.2d 1025 ; People v. Fabers, 133 A.D.3d 616, 618, 20 N.Y.S.3d 89 ).
Contrary to the defendant's contention, the sentence imposed for his conviction of murder in the second degree was not excessive (see People v. Delgado, 80 N.Y.2d 780, 587 N.Y.S.2d 271, 599 N.E.2d 675 ).
DILLON, J.P., CHAMBERS, DICKERSON and BARROS, JJ., concur.