| People v Nadal |
| 2015 NY Slip Op 06448 [131 AD3d 729] |
| August 6, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph Nadal, Appellant. |
Terrence M. Kelly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered June 24, 2013, upon a verdict convicting defendant of the crime of burglaryin the second degree.
During the evening of September 8, 2012, individuals forced their way into anapartment in the City of Albany and assaulted a woman who was staying there. Thevictim summoned the police, who quickly apprehended defendant and others involved inthe break-in. While in custody, defendant was interviewed by a police detective andadmitted that he had orchestrated the incident in an effort to collect money from thevictim.
Defendant was subsequently charged in an indictment with numerous offenses. Hemoved to suppress, among other things, his oral statements to police. County Courtdenied the motion after a hearing, finding that defendant had voluntarily made thestatements after waiving his constitutional rights. A jury trial ensued, at the end of whichdefendant was convicted of burglary in the second degree. County Court sentenceddefendant to a prison term of five years to be followed by postrelease supervision of fiveyears. Defendant now appeals.
Defendant initially asserts that County Court erred in declining to suppress his oralstatements to police, as the People failed to meet their burden of "proving thevoluntariness of defendant's statements beyond a reasonable doubt, including that anycustodial interrogation was preceded by the administration and defendant's knowingwaiver of his Miranda rights" (People v Mattis, 108 AD3d 872, 874 [2013], lvdenied 22 NY3d 957 [2013] [internal quotation marks [*2]and citations omitted]; see People v Rankin, 127 AD3d 1335, 1339 [2015]). Inthat regard, County Court found credible the hearing testimony of the detective whoconducted the interrogation.[FN*] The initial portion of the interview wasnot recorded, which the detective indicated was due to an equipment malfunction ofsome sort. The detective nevertheless testified that he administered Mirandawarnings during the unrecorded portion of the interview, going over them from a writtenwaiver form that is visible on the table next to him during the recorded portion of theinterview. Defendant then waived his rights and agreed to answer questions, and hisrefusal to "execute [the] written waiver of his Miranda rights does not invalidatehis oral waiver or otherwise render his statement involuntary" (People v Rankin,127 AD3d at 1339; see People vThornton, 87 AD3d 663, 664 [2011], lv denied 18 NY3d 862 [2011]).As such, after considering the totality of the circumstances and according due deferenceto County Court's credibility determinations, we find that the People established thatdefendant voluntarily waived his constitutional rights (see People v Rankin, 127AD3d at 1339; People vRizvi, 126 AD3d 1172, 1173 [2015], lv denied 25 NY3d 1076[2015]).
Defendant next contends that the verdict was not supported by legally sufficientevidence and was against the weight of the evidence. The victim was a drug user anddealer, and gave drugs to the renter of the apartment in return for permission to staythere. Defendant told police that he traveled to the apartment on the night in question torecover money from the victim, instructing the two women he was traveling with tocollect the money and beat the victim if she did not have it. One of the women wasChelsey Cornelius, who confirmed at trial that the group was attempting to recover themoney when they went to the apartment. The victim answered the door, but attempted toshut it when she saw who was there, at which point Cornelius and the second womanforced their way inside. The victim then fled to the back of the apartment and was beaten.Defendant had previously visited the victim in the apartment, but the jury could readilydetermine from the foregoing that defendant and his accomplices had no reason tobelieve that they had a "license or privilege to enter" the apartment on the night inquestion (People vThornton, 4 AD3d 561, 563 [2004], lv denied 2 NY3d 808 [2004];see Penal Law § 140.00 [5]; People v Graves, 76 NY2d 16,20 [1990]; People vDashnaw, 37 AD3d 860, 862 [2007], lv denied 8 NY3d 945 [2007]; People v Randolph, 18 AD3d1013, 1015 [2005]). This evidence, when viewed in the light most favorable to thePeople, was "legally sufficient to sustain the charge of burglary in the second degree"(People v Dashnaw, 37 AD3d at 862). We are further persuaded from "[o]urindependent review of the evidence . . . that the jury accorded the evidenceits proper weight and, thus, the verdict is not against the weight of the credible evidence"(People v Thornton, 4 AD3d at 563).
Defendant lastly claims that the People committed prosecutorial misconduct bymaking several improper comments during summation. He did not object to two of thecomments, rendering his present argument unpreserved with regard to them (see People v Richards, 124AD3d 1146, 1147 [2015], lv denied 25 NY3d 992 [2015]; People v VanVorst, 118 AD3d1035, 1037 [2014]). County Court sustained his objections to many of the otheroffending comments, giving "prompt and adequate curative instruction[s] that served toameliorate any prejudice" (People v VanVorst, 118 AD3d at 1037; see People v White, 79 AD3d1460, 1464 [2010], lv [*3]denied 17 NY3d803 [2011]). Thus, while we agree with defendant that the bulk of the comments wouldhave been better left unsaid, the circumstances of this case do not reveal that theyrepresented a flagrant and pervasive pattern of misconduct that deprived him of a fairtrial (see People v Green,119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]; People vWhite, 79 AD3d at 1464-1465).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent thatdefendant attempts to rely upon the allegedly inconsistent trial testimony of the detective,we need only note that "[t]rial testimony may not be considered in evaluating asuppression ruling on appeal" (People v Jerry, 126 AD3d 1001, 1002 [2015], lvdenied 25 NY3d 1165 [2015]; see People v Abrew, 95 NY2d 806, 808[2000]).