| People v O'Keefe |
| 2013 NY Slip Op 02766 [105 AD3d 1062] |
| April 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kenneth O'Keefe, Appellant. |
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Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hinrichs, J.), rendered March 31, 2005, convicting him of manslaughter in the firstdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress certain evidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly determined that hisarrest was supported by probable cause, that his statements to the police were made afterhe knowingly, voluntarily, and intelligently waived his Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]), and that none of the statements was theproduct of coercion (see Peoplev Cotsifas, 100 AD3d 1015 [2012]; People v Taylor, 98 AD3d 593 [2012], lv granted20 NY3d 1065 [2013]; People vSantiago, 97 AD3d 704, 705-706 [2012], lv granted 20 NY3d 935[2012]; People vDeCampoamor, 91 AD3d 669, 670 [2012]; People v Bernardez, 73 AD3d 1196, 1196-1197 [2010]).Accordingly, the court properly denied that branch of the defendant's omnibus motionwhich was to suppress certain evidence and his statements to law enforcement officials.
The defendant contends that the jury verdict was against the weight of the evidencebecause the People failed to disprove his justification defense beyond a reasonable doubt.However, upon our independent review of the evidence pursuant to CPL 470.15 (5), weare satisfied that the rejection of the justification defense and the verdict of guilt were notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). At trial, thedefendant testified that he used a knife against the unarmed victim. Furthermore, basedupon the evidence, the jury could have concluded that the defendant did not reasonablybelieve that the victim was about to use deadly physical force against him, that thedefendant could have, but failed, to retreat, and, consequently, that there was nojustifiable basis for his resort to deadly physical force (see People v Huddleston, 101AD3d 901 [2012]; People vTerrero, 31 AD3d 672, 672-673 [2006]).
While we agree with the defendant's contention that the trial court should not havepermitted the People to play for the jury the entire 911 tape, which revealed the sufferingof the dying [*2]victim (see People v Caruso, 6 AD3d980, 984-985 [2004]), the error was harmless because the evidence of thedefendant's guilt, without reference to the error, was overwhelming, and there is nosignificant probability that the error contributed to the defendant's conviction (seePeople v Crimmins, 36 NY2d 230 [1975]; see also People v Kello, 96 NY2d740 [2001]; People vBohan, 100 AD3d 767 [2012], lv denied 20 NY3d 1009 [2013]).
Contrary to the defendant's contention, the prosecutor properly cross-examined himregarding alleged prior bad acts, since the defendant opened the door to this line ofquestioning during his direct examination (see People v Jackson, 100 AD3d 1018 [2012]). Further, thetrial court correctly denied the defendant's request to admit evidence of the victim's priorbad acts and/or criminal record because there was no evidence that the defendant knewabout them at the time of the incident (see People v DiGuglielmo, 258 AD2d 591[1999]; cf. People v Miller, 39 NY2d 543, 551 [1976]).
The defendant's contention that certain comments made by the prosecutor duringsummation were improper and, thus, deprived him of a fair trial, is unpreserved forappellate review (see CPL 470.05 [2]), because he either raised no objection atall, or made general objections without alerting the trial court to his specific claims nowraised on appeal or, when his objections were sustained, he failed to seek any furthercurative relief or move for a mistrial (see People v Brooks, 89 AD3d 746, 747 [2011]; People v Bajana, 82 AD3d1111, 1112 [2011]). In any event, the complained of statements either constitutedfair comment on the evidence, or, where better left unsaid, did not deprive the defendantof a fair trial (see People vGonzalez, 83 AD3d 1093, 1094 [2011]; People v Miller, 239 AD2d787, 789-790 [1997], affd 91 NY2d 372 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Dickerson, Leventhal and Hall, JJ., concur.