Appeal from a judgment of the Niagara County Court (Amy J. Fricano, J.), rendered August 5, 1999. The judgment convicted defendant, upon a jury verdict, of assault in the first degree (two counts) and gang assault in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of assault in the first degree (Penal Law § 120.10 [1], [3]) and one count of gang assault in the second degree (§ 120.06). Defendant presented evidence after County Court denied his motion to dismiss the
With the exception of the claim that his attorney failed to object to portions of the prosecutor’s summation, the contention of defendant that he was denied effective assistance of counsel is based upon information that is dehors the record, and therefore not reviewable on direct appeal (see People v Lopez, 28 AD3d 234 [2006]; see also People v Love, 57 NY2d 998, 1000 [1982]). We conclude that defense counsel’s failure to object to portions of the summation did not deprive defendant of meaningful representation (see generally People v Flores, 84 NY2d 184, 187 [1994]). However, by failing to object during the prosecutor’s summation, defendant failed to preserve for our review his contention that remarks made during summation constituted prosecutorial misconduct that deprived him of a fair trial (see People v Melendez, 11 AD3d 983, 984 [2004], lv denied 4 NY3d 888 [2005]; People v Norman, 1 AD3d 884 [2003], lv denied 1 NY3d 599 [2004]). We nevertheless conclude that the prosecutor’s summation constituted fair response to defense counsel’s summation, and did not exceed “the broad bounds of rhetorical comment permissible in closing argument” (People v Galloway, 54 NY2d 396, 399 [1981]; see People v Williams, 28 AD3d 1059 [2006]).
We have reviewed defendant’s remaining contention and the