| People v Owens |
| 2015 NY Slip Op 05212 [129 AD3d 995] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Deshawn Owens, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andVictor Barall of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered July 7, 2011, convicting him of burglary in the first degree, robberyin the first degree (five counts), criminal use of a firearm in the first degree, assault in thesecond degree (three counts), unlawful imprisonment in the first degree (four counts),criminal possession of a weapon in the fourth degree (three counts), endangering thewelfare of a child (two counts), and menacing in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his right to counsel was violated since the police knewor should have known that he was represented by counsel while in custody inPennsylvania on another pending charge at the time he was interrogated regarding theinstant case. The defendant failed to raise this argument during a Huntley hearing(People v Huntley, 15 NY2d 72 [1965]). Although the defendant's contentionthat his right to counsel was violated may be raised for the first time on appeal, in thiscase, "the failure to raise the issue in the trial court has resulted in an inadequate record"(People v McLean, 15NY3d 117, 120 [2010]; see People v Kinchen, 60 NY2d 772, 773-774[1983]; People v Elliott, 39AD3d 663 [2007]; cf.People v Lopez, 16 NY3d 375 [2011]). Even if the oral and written statementsmade by the defendant in Pennsylvania were taken in violation of his right to counsel, thewritten statement given in New York six months later, when the defendant was againgiven Miranda warnings (Miranda v Arizona, 384 US 436 [1966]), wassufficiently attenuated to remove any possible taint inherent therein (see People v Wilson, 123AD3d 747, 748 [2014]; People v Dubois, 140 AD2d 619, 622 [1988]). Inany event, the admission into evidence of the three statements in dispute constitutedharmless error because the proof of the defendant's guilt, without reference to thesestatements, was overwhelming, and there is no reasonable possibility that the jury wouldhave acquitted him had it not been for this constitutional error (see People v Borukhova, 89AD3d 194, 216 [2011]).
The defendant's contention that the evidence was legally insufficient to establish hisguilt of the crimes charged because the testimony of the prosecution witnesses wasinconsistent is unpreserved for appellate review, because defense counsel merely joinedin the general motion of the codefendant for a trial order of dismissal based upon thePeople's alleged failure to make out a prima facie case (see People v Simpkins, 81AD3d 860, 860 [2011]; CPL 470.05 [2]). In any event, the contention is withoutmerit. Viewing the evidence in the light most favorable to the prosecution (see [*2]People v Contes, 60 NY2d 620 [1983]), it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt, based upon anacting-in-concert theory (seePeople v Guadmuz, 63 AD3d 1178 [2009]; People v Merchant, 4 AD3d 487 [2004]; People vCrumwell, 199 AD2d 406, 407 [1993]; People v Harper, 136 AD2d 736[1988]). Any discrepancies in the complainants' prior statements to the police and theirtrial testimony were fully explored at trial and did not render the complainants' testimonyincredible or unworthy of belief (see People v Marcus, 112 AD3d 652 [2013]). Moreover,upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]; People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that the prosecutor's remarks on summation constitutedreversible error because the prosecutor allegedly played on the emotions of the jury,denigrated the defense, supported the case through her own veracity and position, andmischaracterized testimony, is unpreserved for appellate review since the defendantfailed to object, request curative instructions, or timely move for a mistrial on thesegrounds (see CPL 470.05 [2]; People v Morales, 87 AD3d 1165 [2011]). In any event,most of the prosecutor's remarks were either fair comment on the evidence presented, fairresponse to the defendant's summation, or permissible rhetorical comment (see People v Caldwell, 115AD3d 870 [2014]), and any error in allowing certain improper statements was not soegregious as to have deprived the defendant of a fair trial (see People v Taylor, 120 AD3d519 [2014]).
The defendant was not deprived of the effective assistance of counsel (seeStrickland v Washington, 466 US 668, 694 [1984]; People v Rivera, 71NY2d 705, 707-708 [1988]; see also CPL 710.40 [4]; McCarthy vMeaney, 183 NY 190 [1905]; People v Phillibert, 99 AD3d 531 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Rivera, J.P., Austin, Sgroi and Barros, JJ.,concur.