| People v Gray |
| 2014 NY Slip Op 02394 [116 AD3d 480] |
| April 8, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Roy Gray, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Justin J.Braun of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered October 23,2008, convicting defendant, after a jury trial, of murder in the second degree, andsentencing him to a term of 25 years to life, and order, same court and Justice, entered onor about June 27, 2011, which denied defendant's CPL 440.10 motion to vacate thejudgment, unanimously affirmed.
Defendant was not deprived of effective assistance of counsel by the fact that hisattorney did not move to reopen a suppression hearing based on trial testimony.Defendant has not established a reasonable probability that the new evidence elicited attrial would have resulted in suppression of his written confession on the ground of lackof attenuation from an inadmissible oral confession.
At trial the investigating detective made clear that defendant had in fact given asubstantive oral confession between the time he received defective initialMiranda warnings and the time he received proper warnings. However, the lessprecise suppression hearing testimony left the impression that this statement consistedonly of a declaration that defendant intended to "take the blame" for his brother, andcontained no substantive admission of guilt. In our decision on the People's appeal froman order of the hearing court (Seth L. Marvin, J.), that granted suppression, wedetermined, based on this latter understanding of the facts, that, regardless of the validityof the initial oral warnings, defendant's "written statement was sufficiently attenuated tobe admissible" (51 AD3d 63, 67 [1st Dept 2008], lv denied 10 NY3d 863 [2008],cert denied 555 US 1182 [2009].
Even accepting defendant's argument that no plausible strategy could justifycounsel's failure to seek a reopened suppression hearing after the evidentiary landscapewas altered by the detective's trial testimony, we find that the lack of reopening did notprejudice defendant (see Strickland v Washington, 466 US 668 [1984]) or renderthe assistance he received less than meaningful (see People v Benevento, 91NY2d 708, 713-714 [1998]). Specifically, we find that although the information thatemerged at trial gave defendant a stronger argument that his written statement was notattenuated, it did not give him a winning one. We rely on many of the considerations wereferred to in our first decision. First, defendant's announcement that he [*2]would speak in order to take the blame for his brotherevinced an independent willingness to speak to police that weighs in favor of a finding ofattenuation (see People vPaulman, 5 NY3d 122, 131 [2005]). Second, even if defendant did incriminatehimself in his oral statement, the fact remains that he then received two undisputedlyvalid sets of warnings, and that there was a 45-minute gap between the two, duringwhich defendant was not questioned. Third, as we indicated in our earlier decision,defendant's extensive criminal record, including eight prior arrests, further supports theconclusion that, before making his written statement, he was "returned, in effect, to thestatus of one who is not under the influence of questioning" (People v Chapple,38 NY2d 112, 115 [1975]). Finally, we consider it relevant that defendant's oralstatement was not preceded by a complete absence of warnings, but by oral warnings thatwere incomplete, apparently because they omitted the warning about appointment of freecounsel.
The court properly exercised its discretion in admitting into evidence a box ofammunition of a type capable of being used in the homicide. The ammunition wassufficiently connected to defendant to meet the test of relevance, and its probative valueoutweighed any prejudicial effect (see People v Bonnemere, 308 AD2d 418, 419[1st Dept 2003], lv denied 1 NY3d 568 [2003]).
By failing to object, making general objections or failing to request any specificfurther relief after the court sustained an objection, defendant failed to preserve hispresent challenges 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 [1997], lv denied91 NY2d 976 [1992]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992],lv denied 81 NY2d 884 [1993]). We have considered and rejected defendant'sineffective assistance claim relating to the summation. Concur—Mazzarelli, J.P.,Andrias, DeGrasse, Feinman and Kapnick, JJ.