PEOPLE v. McNEILL

Defendant's challenge to the court's charge on prior inconsistent statements is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that any deficiency in the charge was harmless ( see People v Crimmins, 36 NY2d 230). Although the victim and defendant gave different versions of how the victim came to receive multiple gunshot wounds, the evidence, viewed as a whole, overwhelmingly supported the victim's account and contradicted defendant's.

Defendant's claims of prosecutorial misconduct in cross-examination and summation are also unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).

Defendant received effective assistance of counsel under the state and federal standards ( see People v Benevento, 91 NY2d 708, 713-714; see also Strickland v Washington, 466 US 668). Defendant argues that his counsel was ineffective for failing to object to allegedly improper aspects of the court's charge and the prosecutor's cross-examination. However, we conclude that counsel's failure to make these objections did not deprive defendant of a fair trial, affect the outcome of the case, or cause defendant any prejudice ( see People v Caban, 5 NY3d 143, 155-156; People v Hobot, 84 NY2d 1021, 1024; compare People v Turner, 5 NY3d 476).

The additional ineffective assistance arguments contained in defendant's pro se supplemental brief are unreviewable on the existing record. The remainder of the pro se claims are unpreserved, unreviewable, or otherwise procedurally barred.

Defendant's dismissal motion was properly denied as untimely.

We find the sentence excessive to the extent indicated.