| People v Kithcart |
| 2011 NY Slip Op 04841 [85 AD3d 1558] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Edward Kithcart, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedFebruary 1, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder inthe second degree (Penal Law § 125.25 [3] [felony murder]), defendant contends that theevidence is legally insufficient to establish the underlying felony of rape or attempted rape. Evenassuming, arguendo, that defendant's motion for a trial order of dismissal was sufficientlyspecific to preserve that contention for our review (see People v Gray, 86 NY2d 10, 19[1995]), we conclude that it is without merit (see People v Washington, 305 AD2d 433[2003], lv denied 100 NY2d 588 [2003]). Viewing the evidence in light of the elementsof the crime as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). We reject defendant's contention that County Court erred in refusing to suppressstatements that he made during a 1992 police interview. The deception used by the police wasnot " 'so fundamentally unfair as to deny [defendant] due process' " (People v Camacho, 70 AD3d1393, 1394 [2010], lv denied 14 NY3d 886, 887 [2010], quoting People vTarsia, 50 NY2d 1, 11 [1980]), nor did it " 'create a substantial risk that the defendant mightfalsely incriminate himself' " (People vAndrus, 77 AD3d 1283, 1284 [2010], lv denied 16 NY3d 827 [2011]).
Defendant failed to preserve for our review his further contention that the court erred inadmitting evidence of his refusal to provide a blood sample for testing (see generally People vDenison, 300 AD2d 1060 [2002]; People v Hathaway, 245 AD2d 1066 [1997]), andwe decline to exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). We reject the contention of defendant that thePeople's failure to call the officer who obtained his statement in 2005 as a witness at theHuntley hearing rendered the evidence establishing the voluntariness of that statementinsufficient. The People met their "burden of going forward to show the legality of the policeconduct in the first instance" (People v Di Stefano, 38 NY2d 640, 652 [1976]), as well astheir burden of establishing that the statement in question was voluntarily made, by presentingthe testimony of another officer who was present when [*2]defendant was advised of his Miranda rights and validlywaived them before making that statement (see People v Witherspoon, 66 NY2d 973,973-974 [1985]; People v Drumm,15 AD3d 910 [2005], lv denied 4 NY3d 853 [2005]).
Defendant failed to preserve for our review his further contention that the court erred inpermitting the People to introduce evidence that defendant invoked his right to remain silent byterminating the 2005 interview (seePeople v Murphy, 79 AD3d 1451, 1453 [2010]). Defendant also failed to preserve forour review his contention that the court erred in permitting the prosecutor to comment on suchevidence during summation (see Peoplev Lombardi, 68 AD3d 1765 [2009], lv denied 14 NY3d 802 [2010]). "In anyevent, in light of the evidence presented, we [conclude] that any such errors [are] 'harmlessbeyond a reasonable doubt' inasmuch as there is 'no reasonable possibility that the error[s] mighthave contributed to defendant's conviction' " (Murphy, 79 AD3d at 1453, quotingPeople v Crimmins, 36 NY2d 230, 237 [1975]). Defendant's remaining contentions withrespect to the prosecutor's alleged misconduct during summation are not preserved for our review(see CPL 470.05 [2]), and we decline to exercise our power to review them as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). The court did not abuse itsdiscretion in denying defendant's request to discharge defense counsel (see People v Porto, 16 NY3d 93,99-101 [2010]), and the record establishes that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, defendant failed topreserve for our review his further contention that the court erred in sentencing him without thebenefit of an adequate presentence report, and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see People v Diaz, 26 AD3d 768 [2006]). Present—Scudder,P.J., Fahey, Lindley, Green and Gorski, JJ.