| People v Foddrell |
| 2009 NY Slip Op 06865 [65 AD3d 1375] |
| September 29, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dyego Foddrell, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Smith, J.), rendered August 24, 2004, convicting him of murder in the second degree andendangering the welfare of a child, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement authorities.
Ordered that the judgment is affirmed.
On December 6, 2002, the defendant and his girlfriend, Sharelle Johnson, brought Johnson's2½-year-old son, Maurice, to the emergency room at Mount Vernon Hospital. The childwas nonresponsive, and examination revealed extensive bruising all over his body. The childdied during the night. The defendant was taken into custody and admitted that he had hit thechild over the course of several weeks in order to discipline him for toilet-training accidents. Healso admitted that, on the night of the child's death, he had hit the child very hard in theabdomen. An autopsy revealed that the child had extensive internal injuries. At trial, thedefendant claimed that he had gone into a psychotic state and was not responsible for his actions.He was convicted of murder in the second degree and endangering the welfare of a child.
Contrary to the defendant's contention, his videotaped statements to Detective Glover, madeafter the readministration of Miranda warnings (see Miranda v Arizona, 384 US436 [1966]), were properly admitted. These post-Miranda statements were attenuatedfrom his earlier pre-Miranda statements to police, as there was a definite and pronouncedbreak in the questioning (see People v Paulman, 5 NY3d 122, 130 [2005]; People vSepulveda, 52 AD3d 539, 540 [2008]; People v Vachet, 5 AD3d 700, 702 [2004]).
The defendant's claim that the jury instruction regarding depraved indifference waserroneous is not preserved for appellate review (see CPL 470.05 [2]; People vGray, 86 NY2d 10, 19 [1995]; see also People v Feingold, 7 NY3d 288, 291 [2006];People v Zephirin, 47 AD3d 649 [2008]), and we decline to reach it in the exercise ofour interest of justice jurisdiction (see CPL 470.15 [6]).[*2]
The defendant's claim that the court's examination of thejurors during jury selection denied him a fair trial is also not preserved for appellate review(see CPL 470.05 [2]; People v Gray, 86 NY2d at 19; People v Yi MingKam, 238 AD2d 617, 617 [1997]), and we decline to reach it in the exercise of our interestof justice jurisdiction (see CPL 470.15 [6]).
Contrary to the defendant's contention, the trial court properly denied his motion for amistrial on the ground that a juror had made an inappropriate predeliberation comment (seePeople v Mack, 224 AD2d 448, 449 [1996]; People v Horney, 112 AD2d 841[1985]). After dismissing that juror, the court individually questioned the remaining jurors.Twelve jurors did not remember the comment and two jurors remembered that a comment wasmade but could not remember its substance (see People v Mack, 224 AD2d 448, 449[1996]). All jurors stated that they could remain fair and impartial. Under these circumstances,we find no reason to overturn the trial court's determination that a mistrial was not warranted(id.; see also People v Simon, 224 AD2d 458, 459 [1996]; People vHorney, 112 AD2d 841 [1985]).
The defendant's remaining contentions are without merit. Spolzino, J.P., Miller, Angiolilloand Dickerson, JJ., concur.