| People v Barber-Montemayor |
| 2016 NY Slip Op 03333 [138 AD3d 1455] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Alexander Barber-Montemayor,Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.),rendered February 5, 2014. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree, petit larceny and criminal possession of stolen property inthe fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of burglary in the second degree (Penal Law § 140.25 [2]), petitlarceny (§ 155.25) and criminal possession of stolen property in the fourthdegree (§ 165.45 [4]). We conclude that the Miranda warningsprovided to defendant at the outset of custodial interrogation were not deficient. The"Miranda prophylaxis does not require a 'ritualistic incantation of warnings in anyparticular language or form' " (People v Snider, 258 AD2d 929, 930[1999], lv denied 93 NY2d 979 [1999]; see California v Prysock, 453 US355, 359-360 [1981]). "The inquiry is simply whether the warnings reasonably'conve[yed] to [a suspect] his [or her] rights as required by Miranda' "(Duckworth v Eagan, 492 US 195, 203 [1989]; see People v Louisias, 29AD3d 1017, 1018-1019 [2006], lv denied 7 NY3d 814 [2006]). Here, thewarnings adequately conveyed that defendant had the right not only to have a lawyerpresent during the entire questioning but to ask for or access that lawyer at any pointduring the questioning (see Florida v Powell, 559 US 50, 62-63 [2010]).
County Court did not abuse its discretion in admitting evidence of an unchargedMarch 4 burglary and theft, as well as evidence of defendant's possession of the stolenguns in the days after that burglary. The People were entitled to establish, in support ofthe charge of criminal possession of stolen property, when and from where and whom theguns had been stolen. Moreover, the People were entitled to establish, in further supportof that charge, that defendant had been in recent and exclusive possession of the stolenguns. The probative worth of the evidence on those issues outweighed any prejudicialtendency of the proof merely to show defendant's criminal propensity (see People vTill, 87 NY2d 835, 836-837 [1995]; People v Ely, 68 NY2d 520, 529[1986]). The court also did not err in admitting in evidence the ammunition clip bearingdefendant's fingerprint. The "connection between the object and the defendant. . . [was] not so tenuous as to be improbable" (People v Mirenda, 23NY2d 439, 453 [1969]; seePeople v Lopez, 40 AD3d 1119, 1121 [2007]).
Defendant failed to preserve for our review his contention that the prosecutor'ssummation mischaracterized certain identification evidence and thus that he was denied afair trial by prosecutorial misconduct (see CPL 470.05 [2]; People v James, 114 AD3d1202, 1206-1207 [2014], lv denied 22 NY3d 1199 [2014]). In any event,there is no merit to the contention that the prosecutor mischaracterized that evidence (see People v Sweney, 55 AD3d1350, 1351 [2008], lv denied 11 NY3d 901 [2008]), and we likewise rejectdefendant's contention that he was denied effective assistance of counsel as a result ofdefense counsel's failure to object to the comment (see People v Lyon, 77 AD3d 1338, 1339 [2010], lvdenied 15 NY3d 954 [2010]).
[*2] Defendant failed to preserve for our review his contention that the court should havesevered counts one through three from counts four through six of the indictment,inasmuch as he moved to sever only counts four and five from the remaining counts(see CPL 470.05 [2]). Moreover, whereas defendant now contends that theaforementioned evidence of the uncharged March 4 burglary and theft may have beenprobative of the March 5 burglary, but not of the events of March 7, he argued below thatsuch Molineux evidence may have been probative in relation to the March 7burglary and theft (counts 4 and 5), but not in relation to the March 5 incident or thecharge of criminal possession of stolen property (counts 1 through 3 and 6). Additionally,defendant's present contention, i.e., that the counts arising out of the March 5 incident(counts 1 through 3) were not joinable in the first instance with the remaining countsbecause "not all defendants were jointly charged with every offense" (CPL 200.40 [1][a]), is raised for the first time on appeal, and we decline to exercise our power to reviewit as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Otherwise, we reject defendant's contention that the counts arising out of the March 5incident should have been severed from the other counts. The counts were properlyjoined in the first instance pursuant to CPL 200.20 (2) (c), i.e., as "defined by the same orsimilar statutory provisions and consequently . . . the same or similar inlaw," and defendant failed to establish good cause for severance (see CPL 200.20[3]). There was no material variance in the quantity of proof for the separate incidents(see People v Ford, 11NY3d 875, 879 [2008]). Moreover, "[t]he incidents occurred on different dates andthe evidence as to each incident was presented through entirely different witnesses," withthe exception of a single witness, who was a codefendant (id.). The evidence ofthe two crimes thus "was readily capable of being segregated in the minds of the jury"(id.) and, indeed, the jury acquitted defendant of all charges in connection withthe March 5 incident.
Defendant failed to preserve for our review his challenge to the sufficiency of theevidence to convict him (see People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, the evidence is legally sufficient to support the conviction and, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Defendant's sentence is not unduly harsh or severe.Present—Smith, J.P., DeJoseph, NeMoyer, Troutman and Scudder, JJ.