| People v Jackson |
| 2016 NY Slip Op 05260 [141 AD3d 1095] |
| July 1, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAaron Jackson, Also Known as Arron Jackson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (John H. Crandall, A.J.),rendered March 28, 2013. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, manslaughter in the second degree, attempted robbery inthe first degree (two counts), attempted robbery in the second degree and criminalpossession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of attempted robbery in the firstdegree and attempted robbery in the second degree, and dismissing counts four throughsix of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, murder in the second degree (Penal Law § 125.25 [3]),two counts of attempted robbery in the first degree (§§ 110.00, 160.15[1], [2]), and attempted robbery in the second degree (§§ 110.00,160.10 [1]). Defendant was sentenced to concurrent terms of incarceration, the longest ofwhich is a term of 25 years to life, to be served consecutively to a like term thatdefendant was serving pursuant to a previous conviction for the attempted murder of apolice officer (People vJackson, 120 AD3d 1601 [2014], lv denied 26 NY3d 1040 [2015]).
We conclude that Supreme Court (Brunetti, A.J.) properly denied defendant's motionto suppress his October 28, 2011 statements to the police as taken in violation of hisMiranda rights and his state constitutional right to counsel. Contrary todefendant's contention, his statements to police on that date were not the product of acustodial interrogation requiring the administration of Miranda warnings at theoutset of the interview (seePeople v Passino, 53 AD3d 204, 205-206 [2008], affd 12 NY3d 748[2009]; see generally People v Alls, 83 NY2d 94, 100 [1993], cert denied511 US 1090 [1994]). Miranda warnings are required prior to the questioning ofan inmate in a prison setting only "where 'the circumstances of the detention andinterrogation . . . entail added constraint that would lead a prison inmatereasonably to believe that there has been a restriction on that person's freedom over andabove that of ordinary confinement in a correctional facility' " (People v Hadfield, 119 AD3d1224, 1225 [2014], lv denied 24 NY3d 1002 [2014], quoting Alls,83 NY2d at 100; see Passino, 53 AD3d at 205-206). Moreover, defendant "failedto meet his ultimate burden by presenting evidence establishing that he was in factrepresented by counsel at the time of interrogation, as defendant contended" (People v Hilts, 19 AD3d1178, 1179 [2005]; seePeople v Holloway, 97 AD3d 1099, 1100 [2012], lv denied 19 NY3d1026 [2012]; see generally People v Rosa, 65 NY2d 380, 388 [1985]). Further,the record demonstrates that defendant's claimed invocation of his right to counsel didnot relate to the matter under investigation and did not occur while he was in policecustody (see People v Vila, 208 AD2d 781, 782 [1994], lv denied 85NY2d 867 [1995]; see also People v Fridman, 71 NY2d 845, 846 [1988]; seegenerally People v Grice, 100 NY2d 318, 321 [2003]; People v West, 81NY2d 370, 373-374 [1993]).
[*2] We concludethat defendant was not deprived of a fair trial by alleged prosecutorial misconduct duringthe opening statement and on summation. The remarks in question constituted faircomment on the evidence (seePeople v Rivera, 133 AD3d 1255, 1256 [2015]; People v Lofton, 132 AD3d1242, 1243 [2015]) as well as fair response to the summation of defense counsel(see People v Halm, 81 NY2d 819, 821 [1993]; People v Walker, 117 AD3d1441, 1442 [2014], lv denied 23 NY3d 1044 [2014]), and those remarks didnot sidetrack the jurors from their ultimate responsibility of determining the factsessential to defendant's guilt or innocence (see generally People v Calabria, 94NY2d 519, 523 [2000]; People v Alicea, 37 NY2d 601, 605 [1975]).
We conclude that the evidence is legally sufficient, in terms of the requisitecorroboration of defendant's statement (see CPL 60.50), to support defendant'sconviction of felony murder (seePeople v Harper, 132 AD3d 1230, 1231 [2015]; People v Hamilton, 121AD2d 395, 396 [1986]; see also People v Murray, 40 NY2d 327, 331 [1976],rearg denied 40 NY2d 1080 [1976], cert denied 430 US 948 [1977]). Wenote that a conviction of felony murder, although requiring corroboration of defendant'sconfession with respect to the homicide, does not require corroboration of the confessionwith respect to the underlying predicate felony (see Harper, 132 AD3d at 1231).On the other hand, we conclude that the evidence, more particularly the corroboration ofdefendant's confession, is legally insufficient to support the convictions of attemptedrobbery in the first and second degrees under counts four through six of the indictment(see id.; People v Velez, 122 AD2d 178, 178-179 [1986]), and we modifythe judgment accordingly.
We have considered defendant's remaining contentions, including the challenge tothe severity of the sentence, and conclude that they are without merit.Present—Whalen, P.J., NeMoyer, Troutman and Scudder, JJ.