| People v Bajana |
| 2011 NY Slip Op 02407 [82 AD3d 1111] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v VictorBajana, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.),rendered March 20, 2009, convicting him of robbery in the second degree and criminalpossession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress his statement to a law enforcement officialand physical evidence.
Ordered that the judgment is affirmed.
The evidence presented at the suppression hearing demonstrated that the arresting officer hadprobable cause to arrest the defendant (see CPL 140.10 [1] [b]; People v Rios, 11AD3d 641 [2004]). Accordingly, the hearing court properly denied that branch of the defendant'somnibus motion which was to suppress physical evidence that was discovered incident to hisarrest. Moreover, since the defendant did not seek to reopen the suppression hearing based on thetrial testimony, or move for a mistrial, the question of whether the trial testimony undermined thehearing court's determination is not properly before this Court (see People v Moss, 67AD3d 1027 [2009]). Furthermore, the hearing court properly denied that branch of thedefendant's omnibus motion which was to suppress the statement he made to a law enforcementofficer. Volunteered statements are admissible, provided that the defendant, as here, "spoke withgenuine spontaneity 'and not [as] the result of inducement, provocation, encouragement oracquiescence, no matter how subtly employed' " (People v Rivers, 56 NY2d 476, 479[1982], quoting People v Maerling, 46 NY2d 289, 302-303 [1978]; see People vTyrell, 67 AD3d 827, 828 [2009]).
The defendant also contends that he was deprived of a fair trial because of certain allegedlyimproper comments made by the prosecutor on summation. The defendant's contentions areunpreserved for appellate review (see CPL 470.05 [2]) because he failed to object to thecomments he now challenges (see People v Romero, 7 NY3d 911, 912 [2006]; Peoplev Damon, 78 AD3d 860 [2010]), or failed to request additional relief when the SupremeCourt sustained objections or provided curative instructions (see People v Heide, 84NY2d 943, 944 [1994]; People v Damon, 78 AD3d 860 [2010]; People v [*2]Hollenquest, 48 AD3d 592, 593 [2008]). In any event, reversalis not warranted because the prosecutor's remarks did not, singly or in combination, deprive thedefendant of a fair trial (see People v Garcia-Villegas, 78 AD3d 727, 728 [2010], lvdenied 15 NY3d 953 [2010]; People v Dunbar, 74 AD3d 1227, 1229 [2010], lvdenied 15 NY3d 851 [2010]; People v Hendrix, 60 AD3d 1081, 1082-1083 [2009];People v Almonte, 23 AD3d 392, 394 [2005]). Defense counsel's failure to object toallegedly improper comments made by the prosecutor on summation did not deprive thedefendant of the effective assistance of counsel (see People v Taylor, 1 NY3d 174[2003]; People v Cass, 79 AD3d 768 [2010]; People v Lopez, 69 AD3d 958[2010]). Moreover, the record reveals that defense counsel otherwise provided meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]).
Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be noappellate review of the defendant's claim that the evidence presented to the grand jury was legallyinsufficient (see CPL 210.30 [6]; People v Folkes, 43 AD3d 956, 957 [2007]).
The defendant's remaining contentions are without merit or involve matter which is dehorsthe record. Covello, J.P., Lott, Roman and Miller, JJ., concur.