| People v Gutierrez |
| 2012 NY Slip Op 04553 [96 AD3d 1455] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Andres P. Gutierrez, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedJanuary 9, 2009. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree and robbery in the second 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 ofrobbery in the first degree (Penal Law § 160.15 [4]) and robbery in the second degree(§ 160.10 [1]). Defendant failed to preserve for our review his contention that the integrityof the grand jury proceeding was impaired pursuant to CPL 210.35 (5) inasmuch as he did notmove to dismiss the indictment on that ground (see People v West, 4 AD3d 791, 792-793 [2004]; see alsoPeople v Workman, 277 AD2d 1029, 1031 [2000], lv denied 96 NY2d 764 [2001];People v Volious, 244 AD2d 871, 872 [1997], lv denied 93 NY2d 1029 [1999]).In any event, we conclude that the prosecutor's questioning of defendant before the grand jurywas not improper.
We reject defendant's further contention that County Court erred in refusing to suppress hisstatements to the police. The record reflects that defendant was not given " 'false legaladvice' " by the police (People v Salgado, 130 AD2d 960, 961 [1987], lv denied70 NY2d 754 [1987]). "Even assuming, arguendo, that the police misled defendant, weconclude that such deception did not create a substantial risk that the defendant mightfalsely incriminate himself" (People v Alexander, 51 AD3d 1380, 1382 [2008], lv denied11 NY3d 733 [2008] [internal quotation marks omitted and emphasis added]), nor can it be saidthat the alleged deception was " 'so fundamentally unfair as to deny [defendant] due process' "(People v Brown, 39 AD3d886, 887 [2007], lv denied 9 NY3d 873 [2007], quoting People v Tarsia, 50NY2d 1, 11 [1980]).
Defendant failed to preserve for our review his challenge to the legal sufficiency of theevidence with respect to the alleged absence of corroboration of the accomplice testimony,inasmuch as he failed to renew his motion for a trial order of dismissal on that ground afterpresenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). In any event, we conclude that defendant's contention lacks merit. The Peoplepresented sufficient corroborative evidence connecting defendant to the commission of therobbery (see People v [*2]Reome, 15 NY3d 188, 191-192 [2010]). Defendantlikewise failed to preserve for our review his contention that the evidence is legally insufficientto establish that he participated in the robbery inasmuch as he failed to move for a trial order ofdismissal on that ground (see People v Gray, 86 NY2d 10, 19 [1995]; People v Washington, 89 AD3d1516, 1517 [2011], lv denied 18 NY3d 963 [2012]). In any event, that contentionlacks merit as well (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Wereject defendant's contention that the court erred in refusing to use his proposed language incharging the jury with respect to the issue of accessorial liability (see People v Leach,293 AD2d 760, 761 [2002], lv denied 98 NY2d 677 [2002]; People v Gonzalez,279 AD2d 637 [2001], lv denied 96 NY2d 800 [2001]), and we conclude that the court'scharge on that issue was proper (see Penal Law § 20.00; People v Perez, 89 AD3d 1393,1394-1395 [2011], lv denied 18 NY3d 961 [2012]; People v Delphin, 26 AD3d 343, 343-344 [2006], lv denied6 NY3d 893 [2006]).Finally, defendant contends that he was denied a fair trial by prosecutorial misconduct onsummation. He failed to preserve that contention for our review (see CPL 470.05 [2]; People v Wallace, 59 AD3d 1069,1070-1071 [2009], lv denied 12 NY3d 861 [2009]), and in any event it has no merit.Contrary to defendant's contention, "[t]he majority of the comments in question were within thebroad bounds of rhetorical comment permissible during summations . . . , and theywere either a fair response to defense counsel's summation or fair comment on the evidence. . . Even assuming, arguendo, that some of the prosecutor's comments were beyondthose bounds, we conclude that they were not so egregious as to deprive defendant of a fair trial"(People v McEathron, 86 AD3d915, 916 [2011] [internal quotation marks omitted]). Present—Scudder, P.J., Centra,Peradotto, Carni and Lindley, JJ.