| People v McIver |
| 2010 NY Slip Op 06448 [76 AD3d 782] |
| August 20, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DerekMcIver, Appellant. |
—[*1]
Appeal from a judgment of the Wyoming County Court (Michael F. Griffith, J.), renderedDecember 16, 2008. The judgment convicted defendant, upon a jury verdict, of promoting prisoncontraband 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 ofpromoting prison contraband in the first degree (Penal Law § 205.25 [2]). Contrary to thecontention of defendant, County Court did not err in refusing to suppress his statement to apolice investigator. The testimony of defendant at the suppression hearing that the statement wascoerced by correction officers and thus was not voluntary presented a credibility issue that thesuppression court was entitled to resolve against defendant (see People v Collins, 302AD2d 958 [2003], lv denied 99 NY2d 653 [2003]). Here, "[t]he testimony of the[investigator] . . . supports the court's determination that defendant's statement[ ][was] preceded by Miranda warnings and voluntarily made by defendant, without anypromises, threats, or coercion on the part of [the correction officers]" (People v Pennick, 2 AD3d 1427,1428 [2003], lv denied 1 NY3d 632 [2004]).
Contrary to defendant's further contention, viewing the evidence in light of the elements ofthe crime as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see People v Livingston, 262 AD2d 786, 787-788[1999], lv denied 94 NY2d 881 [2000]; see generally People v Bleakley, 69NY2d 490, 495 [1987]). Defendant preserved for our review his contention that he was denied afair trial based on prosecutorial misconduct on summation only with respect to two of theprosecutor's comments (see CPL 470.05 [2]). In any event, that contention is withoutmerit inasmuch as all of the prosecutor's allegedly improper comments were either a fairresponse to defense counsel's summation or fair comment on the evidence (see People v Anderson, 52 AD3d1320, 1321 [2008], lv denied 11 NY3d 733 [2008]). Present—Centra, J.P.,Fahey, Carni, Green and Pine, JJ.