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

257
KA 08-02486
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOSHUA M. MILLER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered November 13, 2008. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of felony driving while intoxicated (Vehicle and Traffic Law
§§ 1192 [3]; 1193 [1] [c] [ii]), defendant contends that he was
deprived of a fair trial by the prosecutor’s comments on summation,
including a statement that defense counsel was trying to “divert [the
jury’s] attention away from the truth.” Although the prosecutor’s
statement was improper (see People v Paul, 229 AD2d 932, 933; People v
Carter, 227 AD2d 661, 663, lv denied 88 NY2d 1067; People v Dunbar,
213 AD2d 1000, 1000, lv denied 85 NY2d 972), that isolated comment did
not deprive defendant of a fair trial (see People v Santiago, 289 AD2d
1070, 1071, lv denied 97 NY2d 761; People v Chislum, 244 AD2d 944,
945, lv denied 91 NY2d 924; see generally People v Scott, 60 AD3d
1483, 1484, lv denied 12 NY3d 859; People v Roman, 13 AD3d 1115, 1116,
lv denied 4 NY3d 802). Furthermore, a prosecutor’s closing statement
must be evaluated in light of defense counsel’s summation (see People
v Halm, 81 NY2d 819, 821; People v Morgan, 66 NY2d 255, 259), and we
conclude that the remainder of the prosecutor’s comments at issue were
“a fair response to defense counsel’s summation and did not exceed the
bounds of legitimate advocacy” (People v Melendez, 11 AD3d 983, 984,
lv denied 4 NY3d 888; see generally Halm, 81 NY2d at 821).


Entered:    March 15, 2013                         Frances E. Cafarell
                                                   Clerk of the Court
