| People v Ragen |
| 2016 NY Slip Op 04966 [140 AD3d 1092] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Raymond Ragen, Appellant. |
Joseph F. DeFelice, Kew Gardens, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley, Sarah S.Rabinowitz, and Cristin N. Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Donnino, J.), rendered July 3, 2014, convicting him of manslaughter in the seconddegree and assault in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
On July 23, 2012, the defendant drove his cement truck under an overpass that wastoo low for the truck. The force of the impact when the top of the truck struck theoverpass dislodged a cement barrel on the truck and caused the truck to skid intooncoming traffic and collide with a school bus. Contrary to the defendant's contention,the evidence presented at the suppression hearing supports the Supreme Court'sdetermination that a reasonable person, innocent of any crime, would not have believedthat he was in police custody at a hospital following the accident (see Miranda vArizona, 384 US 436, 444 [1966]; People v Yukl, 25 NY2d 585, 589 [1969];People v Bongiorno, 243 AD2d 719 [1997]). Accordingly, the Supreme Courtproperly denied that branch of the defendant's omnibus motion which was to suppress hisstatements to law enforcement officials while at the hospital.
Viewing the evidence in the light most favorable to the prosecution, we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt (seePeople v Contes, 60 NY2d 620, 621 [1983]). Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that certain comments made by the prosecutor onsummation deprived him of a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]; People vMontalvo, 34 AD3d 600, 601 [2006]). In any event, all of the remarks nowclaimed to have been improper were fair comment on the evidence and responsive to thedefense summation (see Peoplev Jones, 76 AD3d 716, 717 [2010]). Moreover, the defendant's contention thatthe prosecutor failed to [*2]correct allegedly false andmisleading testimony is partially based on matters outside the record. To the extent thatthis contention can be reviewed on this appeal, it is unpreserved for appellate review and,in any event, without merit (see People v Steadman, 82 NY2d 1, 7 [1993]; People v Battles, 65 AD3d1161, 1162 [2009], mod 16 NY3d 54 [2010]; People v Mazyck, 3 AD3d583, 584 [2004]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Dillon, J.P., Chambers, Hinds-Radix and Brathwaite Nelson, JJ., concur.