Paul Skip Laisure, New York, N.Y. (De Nice Powell of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Rebecca L. Visgaitis of counsel), for respondent.
REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered January 7, 2015, convicting him of murder in the second degree and tampering with physical evidence, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel because his trial counsel improperly permitted him to choose whether to request the submission of manslaughter in the first degree as a lesser included offense of murder in the second degree is without merit. The record supports the conclusion that the defendant's trial counsel made the decision to forgo seeking submission of the lesser included charge after consulting with the defendant (see People v. Pickett, 153 A.D.3d 940, 940, 60 N.Y.S.3d 448 ; People v. Gottsche, 118 A.D.3d 1303, 1304–1305, 987 N.Y.S.2d 736 cf. People v. Colville, 20 N.Y.3d 20, 32, 955 N.Y.S.2d 799, 979 N.E.2d 1125 ).
The defendant's contention that certain comments made by the prosecutor on summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, most of the challenged comments were fair comment on the evidence or fair response to the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Spigner, 153 A.D.3d 1289, 1290, 59 N.Y.S.3d 711 ). Although some of the challenged comments were improperly inflammatory (see People v. Redd, 141 A.D.3d 546, 550, 35 N.Y.S.3d 402 ; People v. Walters, 251 A.D.2d 433, 434, 674 N.Y.S.2d 114 ), they were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v. Ulett, 153 A.D.3d 945, 945, 60 N.Y.S.3d 396 ; People v. Lopez, 150 A.D.3d 1266, 1267, 52 N.Y.S.3d 902 ). In addition, contrary to the defendant's contention, counsel's failure to object to the improper comments did not deprive the defendant of the effective assistance of counsel (see People v. Wragg, 26 N.Y.3d 403, 411, 44 N.E.3d 898 ). Counsel's representation, viewed in its totality, cannot be considered ineffective (see People v. Clark, 28 N.Y.3d 556, 562–563, 69 N.E.3d 604 ).
The Supreme Court providently exercised its discretion in denying the defendant's application for a competency examination (see CPL 730.30[1] ; People v. Tortorici, 92 N.Y.2d 757, 765–766, 686 N.Y.S.2d 346, 709 N.E.2d 87 ; People v. Gelikkaya, 84 N.Y.2d 456, 459, 618 N.Y.S.2d 895, 643 N.E.2d 517 ; People v. Jordan, 21 A.D.3d 1039, 800 N.Y.S.2d 850 ).
RIVERA, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.