| People v Adams |
| 2011 NY Slip Op 09388 [90 AD3d 1508] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Charles L. Adams, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered September 8, 2004. The judgment convicted defendant, upon a jury verdict, of murderin the second degree and criminal possession of a weapon in the third 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 ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the third degree (§ 265.02 [former (4)]). Defendant contends that SupremeCourt erred in refusing to suppress his statements to the police as the fruit of an allegedlyunlawful arrest. Even assuming, arguendo, that defendant preserved that contention for ourreview by moving to suppress the statements on that ground, we conclude that he abandoned hiscontention by failing to seek a ruling on that part of his omnibus motion and by failing to objectto the admission in evidence of his statements at trial on that ground (see People v Anderson, 52 AD3d1320 [2008], lv denied 11 NY3d 733 [2008]; see also People v Bigelow, 68 AD3d 1127 [2009], lvdenied 14 NY3d 797 [2010]). We reject the further contention of defendant that the courterred in refusing to suppress his written statement on the ground that it was involuntarily made.The 17-year-old defendant was afforded, at his request, several opportunities to speak with hismother prior to making the statement, and "[t]he fact that defendant['s mother] gave testimony [atthe suppression hearing] that conflicted with that of the police officers presented an issue ofcredibility for the court, which had the opportunity to observe and assess the witnesses"(People v Towndrow, 236 AD2d 821, 822 [1997], lv denied 89 NY2d 1016[1997]; see generally People v Lewis, 277 AD2d 1010, 1011 [2000], lv denied 96NY2d 736 [2001]).
We reject defendant's contention that the court abused its discretion in allowing the People topresent the limited testimony of a witness who observed defendant the morning after the murder(see generally People v Odom, 53AD3d 1084, 1087 [2008], lv denied 11 NY3d 792 [2008]). Further, defendant'scontention with respect to the allegedly improper comment of the prosecutor on summationconcerning that testimony is not preserved for our review because defendant failed either toobject to the court's curative instruction following that comment or to request a mistrial, and thus"the curative instruction[ ] must be deemed to have corrected [any] error to the [*2]defendant's satisfaction" (People v Heide, 84 NY2d 943,944 [1994]). We decline to exercise our power to review defendant's contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant also failed topreserve for our review his further contention that the court erred in failing to charge the jury onthe defense of temporary lawful possession of a weapon (see People v Lawrence, 28 AD3d 1123 [2006], lv denied 6NY3d 896 [2006]). Contrary to defendant's contention, he was not denied effective assistance ofcounsel based on defense counsel's failure to request that charge, inasmuch as the conduct ofdefendant was inconsistent with his claim of temporary lawful possession (see People vBanks, 76 NY2d 799, 801 [1990]; People v Smith, 63 AD3d 1655 [2009], lv denied 13 NY3d839 [2009]; see generally People vCaban, 5 NY3d 143, 152 [2005]). Present—Scudder, P.J., Smith, Green, Gorskiand Martoche, JJ.