| People v Hall |
| 2013 NY Slip Op 03237 [106 AD3d 1513] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vHarold Hall, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Laurie M. Beckerink of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered October 4, 2010. The judgment convicted defendant, upon a jury verdict, ofkidnapping in the first degree, assault in the second degree and aggravated criminalcontempt.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, kidnapping in the first degree (Penal Law § 135.25 [2] [a][intent to inflict physical injury]) and assault in the second degree (§ 120.05 [2]).Contrary to defendant's contention, County Court properly refused to suppress thestatements that he made to the Sheriff's Deputy who transported him back to New Yorkafter he was apprehended in Ohio. The court properly determined that those statementswere admissible because they were not " 'provoked, induced [or] encouraged by policeconduct or interrogation' . . . , but were made voluntarily and spontaneouslyin the course of a dialogue initiated and continued by defendant" (People vJohnson, 277 AD2d 702, 706 [2000], lv denied 96 NY2d 831 [2001]; seegenerally People v Gonzales, 75 NY2d 938, 939 [1990], cert denied 498 US833 [1990]).
Defendant failed to object to the stenographer's alleged failure to transcribe theproceedings during brief pauses in the jury selection process, and thus he failed topreserve for our review his contention that he was improperly absent from the courtroomduring those pauses (see People v Vasquez, 89 NY2d 521, 534 [1997], certdenied sub nom. Cordero v Lalor, 522 US 846 [1997]; People v Jacobs, 298AD2d 954, 955 [2002], lv denied 99 NY2d 559 [2002]). In any event, the recordestablishes that defendant was in fact in the courtroom during the brief pauses.
Contrary to defendant's further contention, the court did not abuse its discretion inadmitting in evidence photographs portraying the victim's injuries (see generallyPeople v Stevens, 76 NY2d 833, 835 [1990]). "The general rule is that photographsof the [victim's injuries] are admissible if[, inter alia,] they tend . . . toillustrate or elucidate other relevant evidence" (People v Pobliner, 32 NY2d 356,369 [1973], rearg denied 33 NY2d 657 [1973], cert denied 416 US 905[1974]) and, here, the photographs were probative with respect to, among other things,the physical injury element of assault in the second degree (see generally People v Davis,39 AD3d 1241, 1242 [2007], lv denied 9 [*2]NY3d 864 [2007]; People v Butera, 23 AD3d 1066, 1068 [2005], lvdenied 6 NY3d 774 [2006], 6 NY3d 832 [2006]).
Defendant's general motion for a trial order of dismissal is insufficient to preserve forour review his contention that the verdict is not supported by legally sufficient evidence(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention iswithout merit. Contrary to defendant's further contention, viewing the evidence in lightof the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's contention that he was denied effective assistance of counsel based onthe failure of defense counsel to object to the alleged inadequacy of the presentencereport "is raised for the first time in his reply brief and therefore is not properly beforeus" (People v Sponburgh,61 AD3d 1415, 1416 [2009], lv denied 12 NY3d 929 [2009]). In any event,that contention is without merit inasmuch as "defendant had every opportunity to adviseCounty Court of any mitigating factors during sentencing" (People v Singh, 16 AD3d974, 978 [2005], lv denied 5 NY3d 769 [2005]). In addition, with respect tothe remaining grounds raised in support of defendant's contention that he was deniedeffective assistance of counsel, we conclude that "the evidence, the law, and thecircumstances of [this] particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People vBaldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that he was denied a fairtrial based on two remarks made by the prosecutor during summation (see People v Dillon, 38 AD3d1211, 1211 [2007]; Peoplev Black, 38 AD3d 1283, 1286 [2007], lv denied 8 NY3d 982 [2007]). Inany event, that contention is without merit. The two isolated remarks did not exceed the"broad bounds of rhetorical comment" permitted on summation (People v McEathron, 86 AD3d915, 916 [2011], lv denied 19 NY3d 975 [2012] [internal quotation marksomitted]; see People vWilliams, 28 AD3d 1059, 1061 [2006], affd 8 NY3d 854 [2007]).Furthermore, the remarks were not so egregious or improper as to deny defendant a fairtrial (see People v Dexter, 259 AD2d 952, 954 [1999], affd 94 NY2d 847[1999]; Black, 38 AD3d at 1286).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contentions and we conclude that they are without merit.Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.