| People v Dobbins |
| 2014 NY Slip Op 09146 [123 AD3d 1140] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gillian Dobbins, Appellant. |
James L. Iannone, Williston Park, N.Y., for appellant, and appellant pro se.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C.King of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered March 26, 2009, convicting him of robbery in the first degree(four counts) and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing pursuant to a stipulation in lieu of motions (Honorof, J.), of the suppression ofthe defendant's statement to law enforcement officials.
Ordered that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion to sever certain counts ofthe indictment. The separate offenses were properly joinable in a single indictmentpursuant to CPL 200.20 (2) (b), since the nature of the proof for each of the offenses wasmaterial and admissible as evidence upon the trial of the others (see People v Kirksey, 107AD3d 825, 825 [2013]; People v Dayton, 66 AD3d 797, 797 [2009]; People v Killings, 55 AD3d852, 852 [2008]). Inasmuch as the offenses were properly joined in one indictmentfrom the outset, the court lacked the statutory authority to sever them (see CPL200.20 [3]; People v Bongarzone, 69 NY2d 892, 895 [1987]; People vKirksey, 107 AD3d at 825; People v Salnave, 41 AD3d 872, 873 [2007]).
Contrary to the defendant's contention, the evidence presented at the suppressionhearing established that he knowingly, voluntarily, and intelligently waived hisMiranda rights prior to making his statement to law enforcement officials (seeMiranda v Arizona, 384 US 436 [1966]). " 'A defendant who refuses to signa written waiver of his [or her] rights, including a Miranda rights card, maynevertheless orally waive his [or her] rights' " (People v Thornton, 87 AD3d663, 664 [2011], quoting People v Saunders, 71 AD3d 1058, 1059 [2010]). Here, thedefendant impliedly waived his rights by stating that he understood his rights and thenwillingly answering questions from law enforcement officials after declining to sign thewaiver on the Miranda rights card with which he was provided (see People vSirno, 76 NY2d 967, 968 [1990]; People v Thornton, 87 AD3d at 664;People v Ridgeway, 101 AD2d 555, 562 [1984], affd 64 NY2d 952[1985]).
[*2] The defendant's contention thatcertain remarks made by the prosecutor during summation were improper is withoutmerit, as the challenged remarks were within the broad bounds of rhetorical commentpermissible in closing arguments, fair response to arguments made by defense counsel insummation, and fair comment upon the evidence (see People v Galloway, 54NY2d 396, 400 [1981]; People v Ashwal, 39 NY2d 105, 109 [1976]; People v Rios, 105 AD3d873, 873 [2013]).
The defendant's contention that the prosecutor improperly introduced evidence of anuncharged crime is unpreserved for appellate review. In any event, any error washarmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error contributed to the defendant's convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Jones, 23 AD3d 399, 399 [2005]).
The defendant's remaining contention, raised in his pro se supplemental brief,pertains to matter dehors the record on appeal (see People v Cuesta, 103 AD3d 913, 916 [2013]; People v Redmond, 41 AD3d514, 515-516 [2007]). Rivera, J.P., Skelos, Roman and Miller, JJ., concur.