| People v Gladding |
| 2009 NY Slip Op 02168 [60 AD3d 1401] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Noah R.Gladding, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedNovember 6, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the firstdegree, murder in the second degree (two counts), and kidnapping in the first 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 first degree (Penal Law § 125.27 [1] [a] [vii]; [b]) and kidnappingin the first degree (§ 135.25 [3]). We reject defendant's contention that the indictment wasinsufficient because the victim's death was improperly "double counted" as an element of bothmurder in the first degree and kidnapping in the first degree. "It is of no moment that a factualcircumstance other than defendant's intent-in this case, the victim's death-is an element of boththe murder and the predicate felony" (People v Lucas, 11 NY3d 218, 222 [2008]).Defendant failed to preserve for our review his contention that the evidence is legally insufficientto support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing theevidence in light of the elements of the crimes as charged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that County Court erred in refusing to suppress his statements tothe police made while he was attempting to locate the victim's body. According to defendant, hisarraignment was unreasonably delayed, depriving him of his right to counsel and rendering hisstatements involuntary. We reject that contention. A delay in an arraignment does notautomatically cause the right to counsel to attach but, instead, "such a delay bears on thevoluntariness of the confession, and is a factor to be considered in that regard"(People v Ramos, 99 NY2d 27, 34 [2002]). As this Court has noted, "[a]n undue delay inan arraignment alone does not render a confession involuntary" (People v Prude, 2 AD3d1318, 1319 [2003], lv denied 3 NY3d 646 [2004]). Here, we conclude that the record ofthe suppression hearing supports the court's determination that the statements made by defendantwere voluntary.
We reject the further contention of defendant that the court erred in denying his challenge[*2]for cause to a prospective juror. Although the prospectivejuror initially expressed "a state of mind that [was] likely to preclude [her] from rendering animpartial verdict based upon the evidence adduced at the trial" (CPL 270.20 [1] [b]), sheultimately stated unequivocally that she could follow the law and be fair and impartial (seePeople v Chambers, 97 NY2d 417, 419 [2002]; People v McLaurin, 27 AD3d 1117,1118 [2006], lv denied 7 NY3d 759 [2006]). We have reviewed defendant's remainingcontentions and conclude that they are without merit. Present—Hurlbutt, J.P., Martoche,Carni, Green and Pine, JJ.