| People v Alexander |
| 2008 NY Slip Op 04163 [51 AD3d 1380] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DerrickAlexander, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered April18, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, attempted robbery in the first degree, criminal possession of a weapon in the seconddegree and criminal possession of a weapon in the third degree.
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,inter alia, murder in the second degree (Penal Law § 125.25 [3]) and attempted robbery inthe first degree (Penal Law §§ 110.00, 160.15 [2]). Defendant contends that hiswritten statement to the police was involuntary and that County Court therefore erred in refusingto suppress it. We reject that contention. "The voluntariness of a confession is to be determinedby examining the totality of the circumstances surrounding the confession" (People vCoggins, 234 AD2d 469, 470 [1996]; see People v Scott, 212 AD2d 1047 [1995],affd 86 NY2d 864 [1995]), and the length of the interrogation, without more, does notrender a defendant's statement involuntary (see People v Towndrow, 236 AD2d 821, 822[1997], lv denied 89 NY2d 1016 [1997]). Although the interrogation herein spannedapproximately nine hours, the record establishes that there were several breaks in theinterrogation during which defendant was left alone, and there is no indication that he sought toend the interrogation, or that he requested food or water, or to use the bathroom (see People vWhiten, 183 AD2d 865, lv denied 81 NY2d 849 [1993]). The record furtherestablishes that defendant was advised of his Miranda rights a second time and signed awritten waiver immediately before signing the statement.
Also contrary to the contention of defendant, his statement was not rendered involuntarybased on alleged police deception. According to defendant, the police misled him by informinghim that he was the least culpable of the suspects and that he would be released if he cooperatedbut, according to the police, they did not inform defendant that he would be released. Evenassuming, arguendo, that the police misled defendant, we conclude that such deception "did notcreate 'a substantial risk that the defendant might falsely incriminate himself' " (People vHamelinck, 222 AD2d 1024, 1024 [1995], lv denied 87 NY2d 921 [1996]), nor canit be said that the alleged deception was " 'so fundamentally unfair as to deny [defendant] dueprocess' " (People v Brown, 39AD3d 886, 887 [2007], lv denied 9 NY3d 873 [2007], quoting People vTarsia, [*2]50 NY2d 1, 11 [1980]). We further conclude thatthe determination of the court to credit the testimony of the police officers that defendant did notinvoke his right to counsel before signing the statement is entitled to deference (see People vProchilo, 41 NY2d 759, 761 [1977]), and we see no basis to disturb that determination (see People v Twillie, 28 AD3d1236, 1237 [2006], lv denied 7 NY3d 795 [2006]; People v Price, 309 AD2d1259 [2003], lv denied 1 NY3d 578 [2003]).Defendant failed to preserve for our review his contention that the conviction of attemptedrobbery and felony murder is not supported by legally sufficient evidence inasmuch as he failedto renew his motion for a trial order of dismissal after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Wright, 43 AD3d 1359,1360 [2007], lv denied 9 NY3d 1011 [2007]; People v LaValley, 41 AD3d 1153, 1154 [2007], lv denied9 NY3d 877 [2007]). In any event, that contention lacks merit. Contrary to defendant'scontention, the People were not required to present evidence pursuant to CPL 60.50corroborating defendant's statement concerning the underlying felony for the felony murder, i.e.,the attempted robbery. "Without the underlying felony . . . , the defendant could stillhave committed a lesser homicide offense," and thus the rationale for requiring corroboration,which is to avoid the danger that a defendant confessed to a crime when no crime has actuallybeen committed, no longer exists (People v Chico, 90 NY2d 585, 590 [1997]; seegenerally People v Davis, 46 NY2d 780, 781 [1978]). Viewing the evidence in the light mostfavorable to the People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]),including defendant's written statement, eyewitness testimony, and the testimony of the firearmsexpert, we conclude that the evidence is legally sufficient to support the conviction of attemptedrobbery and felony murder (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject the contention of defendant that the verdict is against the weight of the evidence(see generally id.). "Issues with respect to 'the credibility of prosecution witnessesconcerning the voluntariness of the confession were for the jury to decide, and there is no basis inthe record to disturb the jury's resolution of those issues' " (People v Warney, 299 AD2d956, 957 [2002], lv denied 99 NY2d 633 [2003]; see People v Sanchez, 267AD2d 960 [1999], lv denied 94 NY2d 906 [2000]). Further, although there wereinconsistencies between the written statement of defendant and his testimony at trial, we cannotconclude that the jury failed to give the evidence the weight it should be accorded in finding thatdefendant acted as an accomplice (see generally Bleakley, 69 NY2d at 495; People v Diaz, 39 AD3d 1244,1245-1246 [2007], lv denied 9 NY3d 842 [2007]; People v Chapman, 30 AD3d 1000, 1001 [2006], lv denied7 NY3d 811 [2006]).
Defendant further contends that he was deprived of a fair trial based on alleged misconductby the prosecutor in cross-examining defendant's witnesses. Defendant's contention with respectto three of the allegedly improper questions is not preserved for our review inasmuch asdefendant made only general objections to those questions (see generally People v Pierre,300 AD2d 1070 [2002], lv denied 99 NY2d 631 [2003]), and we decline to exercise ourpower to review defendant's contention concerning those three questions as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). We conclude that the court properlydenied defendant's request for a mistrial based on two other allegedly improper questions. Thecourt sustained defendant's objections to those questions and gave curative instructions withrespect to them, and "the jury is presumed to have followed" those curative instructions(People v Duvall, 260 AD2d 183, 184 [1999], lv denied 93 NY2d 924 [1999];see also People v Davis, 58 NY2d 1102, 1103-1104 [1983]). The remaining allegedlyimproper questions concern the prosecutor's cross-examination of defendant, and "[i]t does notappear on the record before us that the conduct of the prosecutor during [that] cross-examination. . . was intended merely to harass, annoy or humiliate defendant . . .Rather, it appears that the cross-examination was intended to place defendant in his propersetting and put the weight of his testimony and his credibility to a test, without which a jurycannot fairly appraise [the facts]" (People v Brent-Pridgen, 48 AD3d 1054, 1055 [internal quotationmarks omitted]). Defendant failed to preserve for our review his further contention that he was[*3]deprived of a fair trial by prosecutorial misconduct duringsummation (see People v Smith, 32AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). In any event, "that. . . contention is without merit inasmuch as the prosecutor's comments were eithera fair response to defense counsel's summation or were fair comment on the evidence" (People v Green, 48 AD3d 1245,1245-1246 [2008]; see People vWilliams, 43 AD3d 1336 [2007]; see generally People v Halm, 81 NY2d 819,821 [1993]).
We reject the contention of defendant that he was penalized for exercising his right to trial. "'[T]he mere fact that a sentence imposed after trial is greater than that offered in connection withplea negotiations is not proof that defendant was punished for asserting his right to trial' " (People v Chappelle, 14 AD3d 728,729 [2005], lv denied 5 NY3d 786 [2005]; see People v Griffin, 48 AD3d 1233, 1237 [2008]; People v Taplin, 1 AD3d 1044,1046 [2003], lv denied 1 NY3d 635 [2004]). Finally, the sentence is not unduly harsh orsevere. Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.