| People v Cimino |
| 2008 NY Slip Op 02229 [49 AD3d 1155] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RaymondClair Cimino, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Donald J. Mark, J.),rendered November 8, 2002. The judgment convicted defendant, upon a jury verdict, ofattempted aggravated assault upon a police officer (two counts) and reckless endangerment in thefirst degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of twocounts of attempted aggravated assault upon a police officer (Penal Law §§ 110.00,120.11) and three counts of reckless endangerment in the first degree (§ 120.25). Contraryto the contention of defendant, the verdict finding him guilty of attempted aggravated assaultagainst a police officer and reckless endangerment in the first degree, arising from the same act,is not inconsistent inasmuch as those two crimes "entail distinct results" (People vTrappier, 87 NY2d 55, 59 [1995];see generally People v Williams, 45 AD3d 1466 [2007]). We further conclude thatSupreme Court's Sandoval ruling, pursuant to which the court permitted the People toquestion defendant concerning the fact that he previously was incarcerated but refused to permitquestioning concerning the nature of defendant's prior convictions, did not constitute an abuse ofdiscretion. It cannot be said that the fact that defendant previously was incarcerated would have "'no purpose other than to show that [he had] a criminal bent or character and thus [was] likely tohave committed the crime[s] charged' " (People v Sandoval, 34 NY2d 371, 375 [1974]).Also contrary to the contention of defendant, the court did not err in modifying its originalMolineux ruling by allowing the People to present the testimony of police officersconcerning their suspicion that defendant was purchasing illegal narcotics. Defense counselopened the door to such testimony during his opening statement (see generally People vFardan, 82 NY2d 638, 646 [1993]). The court also properly denied defendant's supplementalsuppression motion as untimely, inasmuch as defendant was unable to show good cause forfailing to make that motion within the 45-day time period set forth in CPL 255.20 (3) (seePeople v McQueen, 307 AD2d 765 [2003], lv denied 100 NY2d 622 [2003]).
We reject the further contention of defendant that the court erred in refusing to suppress hisstatements to the police. Although defendant was in the hospital and was receiving a low [*2]dosage of morphine when he made the statements, the record of thesuppression hearing establishes that he was "not [impaired by drugs] to such a degree that he wasincapable of voluntarily, knowingly, and intelligently waiving his Miranda rights" (People v Snider, 2 AD3d 1452,1452-1453 [2004], lv denied 1 NY3d 634 [2004] [internal quotation marks omitted]).Indeed, the record establishes that defendant was able to engage in a 90-minute interview withthe police, and that he read and corrected the document containing his statements after it wasreduced to writing.
Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence by failing to renew his motion for a trial order ofdismissal at the close of proof (see People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]). In any event, defendant's contention is without merit (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]), as is his further contention that theverdict is against the weight of the evidence (see id.). Defendant failed to preserve for ourreview his contentions that he was denied a fair trial by prosecutorial misconduct on summationand that the court erred in its jury instructions (see CPL 470.05 [2]), and we decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We have reviewed defendant's remaining contentions and conclude that they are lackingin merit. Present—Scudder, P.J., Martoche, Centra, Fahey and Gorski, JJ.