| People v Moses |
| 2013 NY Slip Op 08131 [112 AD3d 447] |
| December 5, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Austin Moses, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Herbert Adlerberg, J.H.O., andGregory Carro, J., at suppression proceedings; Bruce Allen, J., at jury trial andsentencing), rendered August 13, 2009, convicting defendant of two counts of criminalpossession of a weapon in the second degree, and sentencing him, as a second felonyoffender, to concurrent terms of five years, unanimously affirmed.
The court properly denied defendant's motion to suppress two written statements.There is no basis for disturbing the court's credibility determinations. The People elicitedsufficient evidence to satisfy their burden of establishing the voluntariness of thesestatements, notwithstanding some lack of recollection on the part of police witnesses(see generally People v Witherspoon, 66 NY2d 973 [1985]). Between the twowritten statements, defendant made an oral statement that the court suppressed.Defendant asserts that the second written statement was the product of the suppressedstatement. However, the court suppressed the statement solely on the ground of theofficer's inability to recall the details and circumstances of that statement, and it made noexpress finding that the statement was unlawfully obtained. It is thus unclear whether thecourt was suppressing the oral statement as involuntary, or on other grounds notnecessarily within the proper scope of a suppression hearing, which is not concernedwith the trial issue of whether a statement was actually made (see People vGarcia, 197 AD2d 380 [1st Dept 1993], lv denied 82 NY2d 849 [1993]). Inany event, regardless of the reason for suppression of the oral statement, there is nothingto indicate that defendant gave the second written statement as a result of the oralstatement (see People v Tanner, 30 NY2d 102, 105-106 [1972]; People vRifkin, 289 AD2d 262, 263 [2d Dept 2001], lv denied 97 NY2d 759[2002]). Finally, defendant did not preserve his claim that the police used coercive tacticsto obtain either or both of his written statements, and we decline to review it in theinterest of justice. As an alternative holding, we find that it is not supported by therecord.
By failing to make timely and specific objections, defendant failed to preserve hischallenges to the prosecutor's summation (see People v Romero, 7 NY3d 911, 912 [2006]), and wedecline to review them in the interest of justice. As an alternative holding, we find nobasis for reversal (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lvdenied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114,118-119 [1st Dept 1992], lv denied 81 NY2d [*2]884 [1993]).
The court's instruction on temporary and innocent possession, which tracked thelanguage of the Criminal Jury Instructions, correctly stated the law.Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Gische, JJ.