| People v Graham |
| 2013 NY Slip Op 04150 [107 AD3d 1421] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vClifford Graham, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered October 2, 2009. The judgment convicted defendant, upon a jury verdict,of criminal possession of a forged instrument in the first degree (two counts) and petitlarceny (two counts).
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 two counts each of criminal possession of a forged instrument in the firstdegree (Penal Law § 170.30) and petit larceny (§ 155.25). We rejectdefendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The People presentedevidence that defendant passed counterfeit $20 bills at two different locations in threeseparate transactions, and the jury was entitled to reject the testimony of defendant thathe was unaware that the bills were counterfeit (see People v Craven, 48 AD3d 1183, 1184 [2008], lvdenied 10 NY3d 861 [2008]; People v Cotton, 197 AD2d 897, 897-898[1993], lv denied 82 NY2d 893 [1993]). Defendant failed to preserve for ourreview his contention that Supreme Court deprived him of a fair trial by failing to suasponte instruct the jury that defendant was charged in connection with two separateincidents, i.e., the incidents at the two separate locations, and that evidence of guilt withrespect to one of the incidents could not be considered as evidence of guilt with respectto the other (see CPL 470.05 [2]). We decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
We agree with defendant that the court's Sandoval ruling constitutes an abuseof discretion. Although the "exercise of a trial court's Sandoval discretion shouldnot be disturbed merely because the court did not provide a detailed recitation of itsunderlying reasoning" (People v Walker, 83 NY2d 455, 459 [1994]), the court inthis case failed to set forth any basis for its Sandoval ruling. We thus concludethat the court "abdicated its responsibility to balance the Sandoval factors anddetermine that the probative value of the evidence outweighed the potential prejudice todefendant" (People v Clark,42 AD3d 957, 959 [2007], lv denied 9 NY3d 960 [2007]; see People vWilliams, 56 NY2d 236, 238-240 [1982]). We conclude, however, that the error isharmless. "[T]he proof of defendant's guilt [of criminal possession of a forged instrumentin the first degree and [*2]petit larceny] is overwhelming,and there is no significant probability that the jury would have acquitted defendant had itnot been for the error" (People v Arnold, 298 AD2d 895, 896 [2002], lvdenied 99 NY2d 580 [2003]; see generally People v Grant, 7 NY3d 421, 423-425[2006]).
Defendant failed to preserve for our review his further contentions that the courterred in failing to provide limiting instructions with respect to testimony by the People'switness that allegedly infringed upon defendant's right to remain silent and constitutedhearsay (see CPL 470.05 [2]), and we decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Defendant also failed to preserve for our review his contention that theprosecutor deprived him of a fair trial by commenting during summation that defendantrefused to sign the statement he gave to the police because he "wouldn't be a rat onpaper" (see CPL 470.05 [2]). In any event, that contention is without merit (see generally People vMcEathron, 86 AD3d 915, 916 [2011], lv denied 19 NY3d 975 [2012]).The comment in question was within the broad bounds of rhetorical commentpermissible during summations or fair comment on the evidence (see id.).
Contrary to defendant's further contention, we conclude that, by moving to suppressthe statements in issue, he forfeited his right to seek preclusion based upon the People'salleged failure to comply with the notice provisions of CPL 710.30 (see People vRodriguez, 270 AD2d 956, 957 [2000], lv denied 95 NY2d 870 [2000];People v Robinson, 225 AD2d 1095, 1095 [1996], lv denied 88 NY2d884 [1996]). Finally, we reject defendant's contention that the court erred in refusing tosuppress the statements he made to the police on September 11, 2009. Inasmuch asdefendant's counsel was present during the first 20 minutes of the interview and informedthe detectives that defendant was willing to cooperate, it was permissible for the officersto infer from defendant's conduct and his attorney's assurances that defendant's waiver ofhis Miranda rights was made on the advice of counsel (see People v Farrell, 42 AD3d954, 955 [2007]). Present—Centra, J.P., Fahey, Carni, Whalen and Martoche,JJ.