| People v Coriolan |
| 2016 NY Slip Op 03186 [138 AD3d 1134] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terhan Coriolan, Appellant. |
Lynn W. L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County(Kron, J.), rendered May 24, 2012, convicting him of robbery in the second degree (twocounts), upon a jury verdict, and imposing sentence, and (2), by permission, from anorder of the same court dated January 21, 2014, which denied, without a hearing, hismotion pursuant to CPL 440.10 to vacate his judgment of conviction. The appeal fromthe judgment brings up for review the denial, after a hearing (Paynter, J.), of that branchof the defendant's omnibus motion which was to suppress his statement to lawenforcement officials.
Ordered that the judgment and the order are affirmed.
The defendant's contention that his conviction was not supported by legally sufficientevidence is unpreserved for appellate review (see People v Gray, 86 NY2d 10, 19[1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, uponour independent review of the evidence pursuant to CPL 470.15 (5), we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that his waiver of Miranda rights (see Mirandav Arizona, 384 US 436 [1966]) was rendered invalid by the preamble read to him bythe assistant district attorney who conducted the pre-arraignment interview isunpreserved for appellate review, as the defendant failed to move to suppress hisstatements on this ground or otherwise raise the issue before the Supreme Court(see CPL 470.05 [2]; People v Grant, 96 AD3d 779, 780 [2012]). In any event,while we agree that the preamble read to the defendant violated the principles enunciatedin People v Dunbar (24NY3d 304, 316 [2014]) and rendered the subsequent Miranda warningsinadequate and ineffective in advising the defendant of his rights (id. at 316; People v Marino, 135 AD3d877 [2016]; People vRivera, 128 AD3d 1100 [2015]), any error in the admission of that statement attrial was harmless beyond a reasonable doubt. The other evidence of the defendant's guiltwas overwhelming, and there is no reasonable possibility that the admission of thedefendant's statement, the substance of which was largely exculpatory, contributed to hisconvictions (see People v Crimmins, 36 NY2d 230, 237 [1975]).
[*2] The defendant's claim that he was deprived of a fairtrial by certain statements made by the prosecutor during summation is partiallyunpreserved for appellate review (see CPL 470.05; People v Morris, 2 AD3d652 [2003]; People v McHarris, 297 AD2d 824 [2002]). In any event, manyof the challenged statements constituted fair comment on the evidence and the inferencesto be drawn therefrom (see People v McHarris, 297 AD2d at 825), or were a fairresponse to defense counsel's comments during summation (see People v Adamo,309 AD2d 808 [2003]; People v Vaughn, 209 AD2d 459 [1994]). To the extentcertain statements were improper, they were not so flagrant or pervasive as to deny thedefendant a fair trial (see Peoplev Almonte, 23 AD3d 392, 394 [2005]; People v Svanberg, 293 AD2d555 [2002]).
Finally, the Supreme Court properly denied, without a hearing, the defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction. Contrary to thedefendant's contention, the court could determine from the parties' submissions that thedefendant was not deprived of the effective assistance of counsel (see CPL440.30 [1], [2], [4]; People v Satterfield, 66 NY2d 796, 799 [1985]; People v Aguirre, 92 AD3d951, 951-952 [2012]; People v Canty, 32 AD3d 1043, 1044 [2006]; People v Demetsenare, 14AD3d 792, 793 [2005]). Mastro, J.P., Dickerson, Hall and Sgroi, JJ., concur.