| People v Peterkin |
| 2011 NY Slip Op 08027 [89 AD3d 1455] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Don Peterkin,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), renderedFebruary 13, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree (six counts), burglary in the first degree, kidnapping in the second degree (three counts),aggravated sexual abuse in the first degree, assault in the second degree, attempted assault in thesecond degree, petit larceny and unlawful imprisonment 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 of, inter alia,six counts of robbery in the first degree (Penal Law § 160.15 [4]) and one count of burglary inthe first degree (§ 140.30 [4]), arising from two separate incidents. We reject defendant'scontention that Supreme Court erred in refusing to suppress his statements to the police. The evidencepresented at the suppression hearing supports the determination of the court that defendant's waiver ofhis Miranda rights was knowing, voluntary and intelligent. Contrary to defendant's contention,the record of the suppression hearing fails to establish that he was intoxicated at the time he waivedthose rights "to the degree of mania, or of being unable to understand the meaning of his statements"(People v Schompert, 19 NY2d 300, 305 [1967], cert denied 389 US 874 [1967];see People v Lake, 45 AD3d 1409,1410 [2007], lv denied 10 NY3d 767 [2008]). Contrary to defendant's further contention, "[i]tis well settled that where a person in police custody has been issued Miranda warnings andvoluntarily and intelligently waives [his or her Miranda] rights, it is not necessary to repeat thewarnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody hasremained continuous" (People v Glinsman, 107 AD2d 710, 710 [1985], lv denied 64NY2d 889 [1985], cert denied 472 US 1021 [1985]; see People v Jacobson, 60 AD3d 1326, 1327 [2009], lv denied12 NY3d 916 [2009]). The evidence presented at the suppression hearing also supports the court'sdetermination that defendant remained in custody between the reading of the Miranda warningsand the renewed questioning of defendant and that such a time period was not unreasonable (see People v Cooper, 59 AD3d 1052,1054 [2009], lv denied 12 NY3d 852 [2009]; People v Hawkes, 39 AD3d 1209, 1211 [2007], lv denied 9NY3d 845 [2007]; People v Leflore, 303 AD2d 1041, 1042 [2003], lv denied 100NY2d 563 [2003]).
Defendant contends that the evidence is legally insufficient to support the conviction of [*2]counts 1 through 15 of the indictment because he established that he wastoo intoxicated to form the intent to commit the crimes charged in those counts, and thus the Peoplefailed to establish that he had the specific intent to commit those crimes. Defendant failed to move for atrial order of dismissal on that ground, however, and he therefore failed to preserve his contention forour review (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention iswithout merit. Although there was some evidence tending to establish that defendant had consumedalcohol prior to committing the crimes at issue, "[v]iewing the evidence in the light most favorable to thePeople . . . , we conclude that a rational trier of fact could find that defendant had therequisite intent to commit [those] crimes" (People v Martinez, 73 AD3d 1432, 1433 [2010], lv denied 15NY3d 807 [2010]). Defendant further contends that the verdict with respect to counts 16 and 17 of theindictment, charging defendant with robbery in the first degree (Penal Law § 160.15 [4]) andunlawful imprisonment in the first degree (§ 135.10), respectively, is against the weight of theevidence. Viewing the evidence in light of the elements of those crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we reject defendant's contention (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant contends that his right of confrontation was violated by the admission in evidence of areport regarding part of the DNA analysis of a plastic bottle that defendant forcibly inserted into thevagina of the adult female victim. That contention is not preserved for our review inasmuch as defendantobjected to the admission of that report solely on the ground that the People failed to establish asufficient foundation (see People vBolling, 49 AD3d 1330, 1331 [2008]; People v Robinson, 41 AD3d 1183 [2007], lv denied 9 NY3d880 [2007]). In any event, that contention is without merit (see generally People v Freycinet, 11 NY3d 38, 41-42 [2008]).
Contrary to defendant's further contention, we conclude that defense counsel was not ineffective infailing to request a charge on the affirmative defense that the weapon used in the crimes at issue "wasnot a loaded weapon from which a shot, readily capable of producing death or other serious physicalinjury, could be discharged" (Penal Law § 160.15 [4]; see § 140.30 [4]). "Therecan be no denial of effective assistance of . . . counsel arising from [defense] counsel'sfailure to 'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152[2005], quoting People v Stultz, 2 NY3d277, 287 [2004]). Here, "[t]here is no reasonable view of the evidence that would allow the juryto conclude, without resorting to speculation, that defendant" displayed a weapon that was inoperableor unloaded (People v Taylor, 83 AD3d1505, 1506 [2011], lv denied 17 NY3d 822 [2011]; see People v Darden, 57 AD3d 1522 [2008], lv denied 12NY3d 815 [2009]). The fact that no weapon was discovered does not warrant the submission of aninstruction on the affirmative defense (see People v Flores, 47 AD3d 506, 507 [2008], lvdenied 10 NY3d 840 [2008]). We have considered defendant's remaining allegations of ineffectiveassistance of counsel and, viewing the evidence, the law and the circumstances of this case, in totalityand as of the time of the representation, we conclude that defense counsel provided meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentionsand conclude that they are without merit. Present—Scudder, P.J., Smith, Sconiers, Gorski andMartoche, JJ.