| People v Duda |
| 2007 NY Slip Op 09283 [45 AD3d 1464] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael Duda,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December7, 2005. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the firstdegree, rape in the first degree (three counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofone count each of criminal sexual act in the first degree (Penal Law § 130.50 [4]) andendangering the welfare of a child (§ 260.10 [1]), and three counts of rape in the firstdegree (§ 130.35 [4]). Following a trial that ended in a deadlocked jury, a mistrial wasdeclared and a second trial was held on all charges, resulting in the judgment on appeal. Contraryto defendant's contention, County Court did not abuse its discretion in declaring a mistrial on theground that the jury was deadlocked. The jury had deliberated for a total of four hours, and thecourt twice required the jury to engage in further deliberations after being informed of thedeadlock (see CPL 310.60 [1] [a]; Matter of Plummer v Rothwax, 63 NY2d 243,251-252 [1984]; see also People v Ortiz, 54 NY2d 288, 292 [1981]). The court was notrequired to poll the jury before declaring a mistrial inasmuch as it asked the jury foreperson in thepresence of the entire jury whether a unanimous verdict could be reached in a reasonable amountof time and received a negative response without dissent from the other jurors (seePlummer, 63 NY2d at 252). Contrary to defendant's further contention, "the second trial didnot violate the prohibition against double jeopardy inasmuch as the evidence at the first trial waslegally sufficient to support a conviction" (People v Dennard, 39 AD3d 1277, 1278 [2007], lv denied 9NY3d 842 [2007]; cf. People v Tingue, 91 AD2d 166, 167-168 [1983]).
We further conclude that the People's failure to provide defendant with a misplacedhandwritten note given to the police by the victim does not require reversal. Rather, we concludethat the court appropriately sanctioned the People for failing to provide defendant with the noteby informing the jury that an adverse inference may be drawn with respect to the contents of thenote (see People v Martinez, 71 NY2d 937, 940 [1988]). In any event, the possibility ofprejudice to [*2]defendant based on the People's failure toprovide him with a copy of the note was "remote" because defendant was provided with a swornwritten statement by the victim, and the victim testified that the contents of the handwritten notewere the same as the contents of the sworn statement (id.).We reject the contention of defendant that the court erred in refusing to suppress hisstatement to the police before he was informed of his Miranda rights. Defendant was notin custody at the time he made the statement, and thus the police were not required to inform himof his Miranda rights at that time (see generally People v Yukl, 25 NY2d 585,588-589 [1969], cert denied 400 US 851 [1970]). Indeed, the record establishes thatdefendant initiated contact with the police, voluntarily accompanied a police officer to the policestation, was not handcuffed, and was questioned in an investigatory rather than an accusatorymanner (see People v Murphy, 43AD3d 1276, 1277 [2007]; People vRegan, 21 AD3d 1357, 1358 [2005]; People v Cunningham, 13 AD3d 1118, 1119 [2004], lvdenied 4 NY3d 829 [2005], 5 NY3d 761 [2005]). A reasonable person, innocent of anycrime, would not have believed that he or she was in custody under those circumstances (seeYukl, 25 NY2d at 589).Defendant failed to preserve for our review his challenge to the court's jury instructions(see CPL 470.05 [2]), and we decline to exercise our power to review that challenge as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The court properlydenied defendant's request for a missing witness charge with respect to two witnesses because,although they were knowledgeable about material issues, they would have provided onlycumulative testimony (see generally People v Gonzalez, 68 NY2d 424, 427 [1986]).Finally, although we note our disapproval of the prosecutor's comments during summation that ineffect denigrated the defense, we conclude that those comments, as well as the others challengedby defendant, were "not so egregious as to deprive defendant of his right to a fair trial" (People v Ortiz-Castro, 12 AD3d1071 [2004], lv denied 4 NY3d 766 [2005]). Present—Scudder, P.J.,Martoche, Smith, Lunn and Pine, JJ.