| People v Folkes |
| 2007 NY Slip Op 06714 [43 AD3d 956] |
| September 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Theodore Folkes, Also Known as Theodore Blackstock,Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.),rendered April 4, 2000, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress physical evidence and certain statementsmade to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's claim that the evidence was legally insufficient to establish his guilt ofdepraved indifference murder (see Penal Law § 125.25 [2]) is unpreserved forappellate review because the defendant's motion to dismiss for legal insufficiency was on theground that his girlfriend's death was an accident, and not " 'specifically directed' to the depravedindifference charge" (People v Hall,32 AD3d 864, 864 [2006], quoting People v Gray, 86 NY2d 10, 19 [1995]; see People v Parker, 29 AD3d1161, 1162 [2006], affd 7 NY3d 907 [2006]; People v Lisojo, 27 AD3d 215 [2006]; People v Flores, 23 AD3d 194,195 [2005]; see also People v Craft,36 AD3d 1145, 1146 [2007]). Thus, his contention on appeal that "[w]hat little evidencethere is would be more consistent with an intentional act than with a reckless one" was notproperly preserved for appellate review and we decline to exercise our interest of justicejurisdiction to review it. Notably, the defendant did not object to the court charging the jury withdepraved indifference murder and second-degree manslaughter and essentially conceded thatthere was a reasonable view of the evidence that would support a finding that he acted recklessly,rather than with the intent to kill (see People v Flores, supra).[*2]
Since the defendant's guilt was proven beyond areasonable doubt at trial, there can be no appellate review of the issue of whether a prima faciecase was presented to the grand jury (see CPL 210.30 [6]; People v Hall, supra;People v Bedell, 272 AD2d 622 [2000]).
The defendant's contention that certain physical evidence should have been suppressed as theresult of a warrantless search of the apartment where his girlfriend resided and was killed iswithout merit (see generally Payton v New York, 445 US 573 [1980]). The police entryinto the subject apartment was proper under both the consent (see People v Gonzalez, 39NY2d 122 [1976]; People v Gittens,34 AD3d 693 [2006]; People v Richards, 119 AD2d 597 [1986]) and exigentcircumstances exceptions to the prohibition against warrantless searches and seizures (seePeople v Calhoun, 49 NY2d 398, 403 [1980]; People v Williams, 296 AD2d 560,561 [2002]; People v Saunders, 290 AD2d 461, 463 [2002]; People v Green, 103AD2d 362, 365-366 [1984]; cf. People v Cartier, 149 AD2d 524, 526 [1989]).
The defendant's contention that the admission of a statement he made to a police officer atthe time of his arrest violated his right to remain silent is unpreserved for appellate review. Theonly objection to the admission of that statement was made immediately before the trial began onthe grounds that it had "absolutely no probative value," it only had a "prejudicial effect," and"add[ed] nothing to the [People's] case." Thus, the ground the defendant raises on appeal, that theadmission of that statement violated his right to remain silent, was not the ground raised when hemade the objection (see CPL 470.05 [2]; People v Clark, 37 AD3d 487, 488 [2007]; People v Jones, 25 AD3d 724, 725[2006]). In addition, the defendant failed to object when the police officer testified about thestatement and made only a general objection to the prosecutor's reference to that statement duringsummation (see People v Clark, supra; People v Tevaha, 84 NY2d 879, 881 [1994]; People v Wright, 40 AD3d 1021[2007). Moreover, the statement with which the defendant takes issue on this appeal was not thesubject of the pretrial suppression motion which sought to exclude, on the ground of an allegedMiranda violation (see Miranda v Arizona, 384 US 436 [1966]), other statementsmade to the police immediately after the murder when the defendant was a witness and not underarrest.
The defendant's remaining contentions are without merit. Spolzino, J.P., Skelos, Lifson andBalkin, JJ., concur.