| People v Denis |
| 2012 NY Slip Op 00569 [91 AD3d 1301] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JorgeDenis, Appellant. |
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedSeptember 30, 2004. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance 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 criminal sale of a controlled substance in the first degree (Penal Law . 220.43 [1]). We rejectdefendant's contention that he was unlawfully arrested in his home without an arrest warrant inviolation of Payton v New York (445 US 573 [1980]), and that County Court therefore erred inrefusing to suppress his statements to the police as the fruits of an unlawful arrest. Police officerswere in defendant's home pursuant to a valid search warrant and, "[s]ince the requirements for asearch warrant were satisfied, there was no constitutional infirmity in the failure of the police toalso secure an arrest warrant" (People v Lee, 205 AD2d 708, 709 [1994], lv denied 84 NY2d 828[1994]; see People v Barfield, 21 AD3d 1396 [2005], lv denied 5 NY3d 881 [2005]; People vBattista, 197 AD2d 486 [1993], lv denied 82 NY2d 891 [1993], 83 NY2d 869 [1994]). We reject defendant's further contention that there was insufficient evidence tocorroborate the accomplice's testimony. Rather, the testimony of the accomplice was amplycorroborated by, inter alia, police testimony concerning defendant's conduct while undersurveillance, the cocaine seized from the accomplice's van, the large amount of cash found indefendant's home during the execution of the search warrant, and defendant's statementsfollowing his arrest (see generally CPL 60.22 [1]; People v Reome, 15 NY3d 188, 191-192[2010]; People v Taylor, 87 AD3d 1330 [2011], lv denied 17 NY3d 956 [2011]; People v Cole,68 AD3d 1763 [2009], lv denied 14 NY3d 839 [2010]). Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]),and affording the appropriate deference to the jury's credibility determinations (see People v Hill,74 AD3d 1782 [2010], lv denied 15 NY3d 805 [2010]), we reject defendant's further contentionthat the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Defendant contends in addition that he was deprived of a fair trial by prosecutorialmisconduct. The record establishes, however, that defendant waived his contention because, nearthe end of the prosecutor's summation, defense counsel consulted with defendant and expresslydeclined the court's offer of a mistrial based on the prosecutor's misconduct (see People v Myers,87 AD3d 1286 [2011], lv denied 18 NY3d 802 [2011]; People v Harris, 74AD3d 1844 [2010], lv denied 15 NY3d 893 [2010]; see also People v Santos, 41 AD3d 324[2007], lv denied 9 NY3d 926 [2007]). Finally, we reject defendant's contention that he wasdenied effective assistance of counsel based on defense counsel's failure to move for a mistrial orto accept the court's sua sponte offer to grant one. Defendant has failed " 'to demonstrate theabsence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcoming[]" in that respect (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71NY2d 705, 709 [1988]). Present Smith, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.