| People v Fortino |
| 2009 NY Slip Op 03309 [61 AD3d 1410] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Anthony P. Fortino, Jr., Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedAugust 3, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree (two counts), burglary in the second degree (two counts), and burglary 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 oftwo counts each of murder in the second degree (Penal Law § 125.25 [1], [3]) andburglary in the second degree (§ 140.25 [1] [b], [c]), and one count of burglary in the thirddegree (§ 140.20). We reject defendant's contention that reversal is required based uponprosecutorial misconduct. "With respect to the instances of alleged prosecutorial misconduct thatare preserved for our review, we conclude that 'the conduct of the prosecutor was not soegregious or prejudicial as to deny defendant his right to a fair trial' " (People v Mastowski, 26 AD3d744, 746 [2006], lv denied 6 NY3d 850, 7 NY3d 815 [2006], quoting People vDexter, 259 AD2d 952, 954 [1999], affd 94 NY2d 847 [1999]; see People v Diaz, 52 AD3d 1230[2008], lv denied 11 NY3d 831 [2008]). Defendant failed to preserve for our review hiscontention with respect to the remaining instances of alleged prosecutorial misconduct duringsummation (see CPL 470.05 [2]; Diaz, 52 AD3d at 1231), and we decline toexercise our power to review those instances of alleged prosecutorial misconduct as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that County Court failed toconduct an adequate inquiry to determine if a juror was grossly unqualified to serve (see People v Haynes, 35 AD3d1212, 1213 [2006], lv denied 8 NY3d 946 [2007]). In any event, that contention iswithout merit. The record establishes that the court's inquiry revealed that the juror had only a"limited exchange" with another person and that the exchange did not render her grosslyunqualified to serve (People vGriffin, 41 AD3d 1285, 1286 [2007], lv denied 9 NY3d 923 [2007],reconsideration denied 9 NY3d 990 [2007]; see CPL 270.35 [1]). Defendant alsofailed to preserve for our review his contention that the court erred in failing to instruct the jurythat a certain witness was an accomplice as a matter of law, thus requiring corroboration of hertestimony (see People v Argentina,27 AD3d 569 [2006], lv denied 7 NY3d 751 [2006]; see also People v Taylor, 57 AD3d1518 [2008]). In any event, the failure of the court to give that instruction is of no moment,[*2]inasmuch as the testimony of the witness was in fact amplycorroborated (see People vSmith-Merced, 50 AD3d 259 [2008], lv denied 10 NY3d 939 [2008]; Peoplev Cody, 190 AD2d 684, 685 [1993], lv denied 81 NY2d 969 [1993]). Contrary todefendant's contention, the court properly refused to suppress a statement made by defendantafter he invoked his right to counsel. The record of the suppression hearing establishes that thestatement was spontaneous and not in response to police interrogation or the functionalequivalent thereof (see People vMurphy, 51 AD3d 1057, 1057-1058 [2008], lv denied 11 NY3d 792 [2008]; People v Maye, 18 AD3d 1026,1028 [2005], lv denied 5 NY3d 808 [2005]; People v Folger, 292 AD2d 841[2002], lv denied 98 NY2d 675 [2002]). Finally, we reject the further contention ofdefendant that he was denied effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Present—Smith, J.P., Centra, Fahey, Carni andGorski, JJ.