| People v Whitfield |
| 2010 NY Slip Op 03662 [72 AD3d 1610] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ahkeem J.Whitfield, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered April 22,2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofmurder in the second degree (Penal Law § 125.25 [1]), arising from the death of the10-month-old daughter of defendant's girlfriend. Defendant failed to preserve for our review hiscontention that County Court's instructions to the jury on the charge of murder in the seconddegree were confusing and misleading inasmuch as he failed to object to those instructions (see People v Bermudez, 38 AD3d1244 [2007], lv denied 8 NY3d 981 [2007]). Defendant likewise failed to preservefor our review his contention that he was deprived of a fair trial by prosecutorial misconduct onsummation (see People v West, 70AD3d 1508 [2010]). We decline to exercise our power to review those contentions as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant furthercontends that the court erred in denying his request for a circumstantial evidence charge. Theevidence presented at trial, however, consisted of both circumstantial and direct evidence, andthus the circumstantial evidence charge was not required (see People v Johnson, 21 AD3d 1395 [2005], lv denied 5NY3d 883 [2005]).
Contrary to the contention of defendant, the court properly refused to suppress his statementsto the police. The court concluded that defendant was not in custody when he made thosestatements, and we accord great deference to the court's findings of fact and credibilitydeterminations, which are supported by the record (see People v Correa, 62 AD3d 406 [2009], lv denied 13NY3d 743 [2009]; People v Davis, 58 AD3d 896, 898 [2009]).
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Martoche, Fahey, Green and Gorski, JJ.