Opinion
July 14, 1992
Appeal from the Erie County Court, McCarthy, J.
Present — Green, J.P., Lawton, Boehm, Davis and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: Upon review of the record, we reject defendant's contention that he was deprived of effective assistance of counsel. Viewed in totality, the representation provided to defendant met the standard of "meaningful representation" (People v. Baldi, 54 N.Y.2d 137, 147). The defense was that the victim's death was accidental; thus, counsel's failure to offer psychiatric testimony to support the defense of extreme emotional disturbance must be regarded as a deliberate tactical decision.
The court properly admitted evidence of defendant's prior threats and acts of violence against the victim. Such proof was admissible to establish defendant's intent and motive and to rebut his defense that her death was accidental (see, People v Ventimiglia, 52 N.Y.2d 350; People v. Henson, 33 N.Y.2d 63; People v. Castrechino, 134 A.D.2d 877, lv denied 70 N.Y.2d 1005; People v Dyes, 122 A.D.2d 69).
The jury's verdict was fully supported by the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490; People v Christian, 139 A.D.2d 896, lv denied 71 N.Y.2d 1024) and the sentence imposed was neither harsh nor excessive.
The other issues raised by defendant have not been preserved for review (see, CPL 470.05). Were we to consider those issues in the interest of justice, we would conclude that they are without merit. While the prosecutor's comments in summation may have exceeded the bounds of permissible advocacy, the record does not disclose a pervasive or persistent pattern of misconduct nor were the remarks so egregious that defendant was deprived of a fair trial (see, People v. Plant, 138 A.D.2d 968, lv denied 71 N.Y.2d 1031; People v. Mott, 94 A.D.2d 415). Further, in light of the overwhelming proof of guilt, the error was harmless (see, People v. Crimmins, 36 N.Y.2d 230). The verdict sheet challenged for the first time on appeal was given to the jury with the consent of defense counsel and its submission was, therefore, proper (see, People v. Nimmons, 72 N.Y.2d 830). Finally, it was not error for the court to reread to the jury the elements of the affirmative defense of extreme emotional disturbance. The jury's question came in the form of a request for the court to reread them (see, People v. Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847), and the court's supplemental instructions included further clarification and commentary to facilitate the jury's understanding. We would likewise reject defendant's contention that the court erred in refusing to furnish the jury with a copy of Penal Law § 125.25 (1) (a), defining extreme emotional disturbance. That submission is conditioned upon the consent of the parties, which was lacking here, and remains subject always to the court's discretion (see, People v. Sanders, 70 N.Y.2d 837; People v. Watkins, 155 A.D.2d 386, lv denied 76 N.Y.2d 744; CPL 310.30).