| People v Shaw |
| 2009 NY Slip Op 06981 [66 AD3d 1417] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian Shaw,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedApril 3, 2006. The judgment convicted defendant, upon a jury verdict, of manslaughter in thefirst degree and endangering the welfare of a child.
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 ofmanslaughter in the first degree (Penal Law § 125.20 [2]) and endangering the welfare of achild (Penal Law § 260.10 [1]). Contrary to the contention of defendant, his confessionwas not rendered involuntary by undue "psychological pressure," and County Court thusproperly refused to suppress the confession. In support of his contention, defendant reliesprimarily on his own testimony at the Huntley hearing. The court's determination todiscredit that testimony is entitled to deference (see People v Prochilo, 41 NY2d 759,761 [1977]), and we see no basis to disturb it (see People v Thompson, 59 AD3d 1115, 1116 [2009], lvdenied 12 NY3d 860 [2009]). We reject defendant's further contention that certaininconsistencies in the testimony of the police witnesses at the suppression hearing demonstratethat such testimony was "tailored to meet constitutional objections" and thus that the court erredin crediting that testimony. In any event, we conclude that those minor inconsistences do notundermine the court's credibility determination in favor of those witnesses (see generally People v Childres, 60AD3d 1278, 1279 [2009]). We also reject the contention of defendant that he was advised ofhis Miranda rights in a manner that did not enable him to understand those rights. Uponour review of the transcript of the suppression hearing, we conclude that "[t]he People met 'theirinitial burden of establishing the legality of the police conduct and defendant's waiver of rights,'and defendant failed to establish that he did not waive those rights, or that the waiver was notknowing, voluntary and intelligent" (People v Grady, 6 AD3d 1149, 1150 [2004], lv denied 3NY3d 641 [2004]; see People vCaballero, 23 AD3d 1031, 1032 [2005], lv denied 6 NY3d 846).
Contrary to the further contention of defendant, the court properly denied his request todismiss a sworn juror as "grossly unqualified to serve in the case" (CPL 270.35 [1]). Althoughthe juror initially expressed some concern over the defense of extreme emotional disturbance, heultimately assured the court in unequivocal terms that he would be fair and impartial and wouldfollow the court's instructions (see generally People v Buford, 69 NY2d 290, 297-299[1987]; People v [*2]Buchholz, 23 AD3d 1093, 1094 [2005], lv denied6 NY3d 846). Defendant failed to preserve for our review the majority of his contentionsconcerning the alleged instances of prosecutorial misconduct (see CPL 470.05 [2]), andwe conclude that, in any event, "[a]ny improprieties were not so pervasive or egregious as todeprive defendant of a fair trial" (Peoplev Cox, 21 AD3d 1361, 1364 [2005], lv denied 6 NY3d 753 [2005] [internalquotation marks omitted]). We have considered defendant's remaining contention and concludethat it is without merit. Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.