           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

507
KA 11-01503
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LAMARIO COTTO, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (RYAN D. HAGGERTY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered June 7, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). Defendant failed to preserve for our
review his contention that he was denied a fair trial by prosecutorial
misconduct during summation inasmuch as he did not object to any of
the alleged improprieties (see People v Rumph, 93 AD3d 1346, 1347, lv
denied 19 NY3d 967; People v Smith, 90 AD3d 1565, 1567, lv denied 18
NY3d 998; People v Mull, 89 AD3d 1445, 1446, lv denied 19 NY3d 965).
In any event, defendant’s contention is without merit. Some of the
prosecutor’s allegedly improper comments were “ ‘either a fair
response to defense counsel’s summation or fair comment on the
evidence’ ” (People v Green, 60 AD3d 1320, 1322, lv denied 12 NY3d
915), and the remaining alleged instances of misconduct were not so
egregious as to deprive defendant of a fair trial (see People v
Pringle, 71 AD3d 1450, 1451, lv denied 15 NY3d 777; People v Scott, 60
AD3d 1483, 1484, lv denied 12 NY3d 859). Notably, two of the
instances of alleged prosecutorial misconduct cited by defendant
relate solely to the count of which he was acquitted. Finally, the
sentence imposed is not unduly harsh or severe.



Entered:   May 3, 2013                             Frances E. Cafarell
                                                   Clerk of the Court
