| People v Mendez |
| 2010 NY Slip Op 06861 [77 AD3d 1312] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose Mendez,Appellant. |
—[*1] Jose Mendez, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Roy W. King, A.J.), rendered November30, 2006. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree, assaultin the first degree, and robbery in the second degree (four counts).
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, of burglaryin the first degree (Penal Law § 140.30 [2]), assault in the first degree (§ 120.10 [4]), andfour counts of robbery in the second degree (§ 160.10 [1], [2] [b]). We conclude that CountyCourt did not err in refusing to suppress defendant's written statement that was given at the policestation. Defendant was administered Miranda rights at approximately 9:30 p.m., at which timehe waived those rights. Subsequently, defendant remained in police custody, and there is no evidence inthe record before us that he invoked his right to counsel or had reason to believe that he was no longerunder investigation. The police questioned defendant approximately three hours later, withoutreadministering defendant's Miranda rights, and defendant gave the written statement at issue.We conclude, under the facts of this case, that there was no need for the police to readministerdefendant's Miranda rights and thus that the court properly refused to suppress defendant'swritten statement (see People v Dudley,31 AD3d 264, 265 [2006], lv denied 7 NY3d 866 [2006]).
We further conclude that the court properly denied defendant's motion for a mistrial based on thesingle use by a police officer of the term "home invasion" during his trial testimony, despite the fact thatthe court had ruled that the term would be inadmissible. The court issued a curative instruction to thejury, which the jury is presumed to have followed (see generally People v Moore, 71 NY2d684, 688 [1988]), and we cannot conclude that the single use of that term was so prejudicial that a fairand impartial verdict could not be reached (see generally People v Collins, 72 AD2d 431,435-436 [1980]).
We also reject the contention of defendant that he was denied effective assistance of counsel,inasmuch as defendant failed to show the absence of a strategic explanation for defense [*2]counsel's alleged shortcomings (see People v Benevento, 91NY2d 708, 712 [1998]; see generally People v Baldi, 54 NY2d 137, 147 [1981]). Likewise,viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Fahey, Sconiers, Pine and Gorski, JJ.