| People v Rivera |
| 2012 NY Slip Op 00809 [91 AD3d 972] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EfrainRivera, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered June 3, 2009, convicting him of robbery in the second degree and burglary in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial(Marrus, J.), after a hearing, of that branch of the defendant's omnibus motion which was tosuppress his oral statement made to law enforcement officers.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the trial court did not, in effect, deprive him of theright to challenge the voluntariness of a statement he made at a hospital by precluding certainevidence. In this regard, the trial court providently exercised its discretion in precluding thedefendant's hospital record and photographs taken of him hours after he made his statement, asany probative value that evidence may have had would have been substantially outweighed by itsprejudicial effect (see People v Scarola, 71 NY2d 769, 777 [1988]; People vJessamy, 282 AD2d 288, 289 [2001]).
The defendant correctly contends that his statement made at the scene of the crime, whichwas made without the benefit of Miranda warnings (see Miranda v Arizona, 384US 436 [1966]), and after he had been handcuffed and subject to express questioning, shouldhave been suppressed (see People vO'Connor, 6 AD3d 738, 739-740 [2004]; People v Hardy, 5 AD3d 792, 793 [2004]; People v Rifkin,289 AD2d 262, 263 [2001]; People v Soto, 183 AD2d 926, 927 [1992]). Nevertheless,the admission of that statement was harmless beyond a reasonable doubt, particularly in light ofthe defendant's own admissions during his testimony at trial (see People v Crimmins, 36NY2d 230, 237 [1975]; People vGraham, 48 AD3d 265, 266 [2008]; People v Reid, 34 AD3d 1273, 1273 [2006]).
The defendant's contentions that the prosecutor's allegedly improper questions duringcross-examination of him and comments during summation constitute reversible error areunpreserved for appellate review (see CPL 470.05 [2]; People v West, 86 AD3d 583, 584 [2011]; People v Prowse, 60 AD3d 703,704 [2009]; People v Crawford, 54AD3d 961, 962 [2008]). In any event, the questions the prosecutor asked the defendant wereeither proper or do not warrant reversal (see People v Bryant, 39 AD3d 768, 769 [2007]; People v Siriani, 27 AD3d 670[2006]; People v Overlee, 236 AD2d 133, [*2]136[1997]). The prosecutor's remarks during summation were mostly either fair comment on theevidence, permissible rhetorical comment, or responsive to defense counsel's summation (seePeople v Ashwal, 39 NY2d 105, 109-110 [1976]). Although some of the remarks wereimproper, they were not sufficiently prejudicial to require reversal (see People vGalloway, 54 NY2d 396, 401 [1981]; People v Valerio, 70 AD3d 869 [2010]).
The defendant was afforded meaningful representation (see People v Benevento, 91NY2d 708 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Florio, J.P., Chambers, Hall and Miller, JJ., concur.