| People v Young |
| 2017 NY Slip Op 06779 [153 AD3d 1618] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v TalaricoYoung, Appellant. |
Hiscock Legal Aid Society, Syracuse (Mary P. Davison of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedApril 29, 2014. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree and perjury in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, murder in the second degree (Penal Law § 125.25 [1]). Defendantcontends that County Court should have suppressed all of his statements to the police, and notjust a portion thereof, because he invoked his right to counsel and his right to remain silent atseveral points during the police interrogation. We reject that contention. The court properlydetermined that defendant did not make at any time an unequivocal request for the assistance ofan attorney during the interrogation (see People v Glover, 87 NY2d 838, 839 [1995]; People v Schluter, 136 AD3d1363, 1364 [2016], lv denied 27 NY3d 1138 [2016]; People v Davis, 193AD2d 1142, 1142 [1993]). The court also properly determined that defendant did not invoke hisright to remain silent until approximately 6:38 p.m., and all statements thereafter weresuppressed. " 'It is well settled . . . that, in order to terminate questioning,the assertion by a defendant of his right to remain silent must be unequivocal andunqualified' " (People vZacher, 97 AD3d 1101, 1101 [2012], lv denied 20 NY3d 1015 [2013]).Although defendant initially indicated when he was given the Miranda warnings that hedid not want to talk to the officers, he then asked them "what's going on" and, when one of theofficers repeated the warnings, defendant waived them and indicated that he was willing to talkto the officers. Under the circumstances, we conclude that, contrary to defendant's contention, hewaived his Miranda rights and did not make an unequivocal assertion of his right toremain silent at that time (see People vIngram, 19 AD3d 101, 102 [2005], lv denied 5 NY3d 806 [2005]; see also People v Valverde, 13 AD3d658, 659 [2004], lv denied 4 NY3d 836 [2005]). In any event, we conclude that anyerror is harmless. The evidence of defendant's guilt is overwhelming, and there is no reasonablepossibility that any error in admitting defendant's statements contributed to his conviction (see People v Reid, 34 AD3d 1273,1273 [2006], lv denied 8 NY3d 884 [2007]; see generally People v Crimmins, 36NY2d 230, 237 [1975]).
Contrary to defendant's contention, the court properly denied his Batson challenge.Defendant failed to meet his burden of making out a prima facie case of "purposefuldiscrimination with respect to the prosecutor's exercise of a peremptory challenge to a blackprospective juror" inasmuch as he failed to articulate "any facts or circumstances that would raisean inference that the prosecutor excused the prospective juror for an impermissible reason" (People v Bryant, 12 AD3d 1077,1079 [2004], lv denied 4 NY3d 761 [2005]).
Defendant contends that he was denied a fair trial by several instances of allegedprosecutorial misconduct. Defendant objected to only two instances of alleged misconduct,thereby rendering the remaining instances unpreserved for our review (see People v Barnes, 139 AD3d1371, 1374 [2016], lv denied 28 NY3d 926 [2016]). We note that, in any event, noneof the unpreserved instances constitutes misconduct. Specifically, we conclude that theprosecutor did not engage in misconduct during his opening remarks, and he did not violate thecourt's suppression ruling. In addition, all of the unpreserved instances of alleged misconductduring summation were either fair comment on the evidence or fair response to defense counsel'ssummation (see People v Carducci,143 AD3d 1260, 1262 [2016], lv denied 28 NY3d 1143 [2017]; People v McEathron, 86 AD3d915, 916 [2011], lv denied 19 NY3d 975 [2012]).
Turning to the two preserved instances of alleged misconduct, we agree with defendant that acomment by the prosecutor during summation constituted impermissible burden-shifting (seePeople v LaPorte, 306 AD2d 93, 96 [2003]). The court, however, instructed the jury afterdefendant's objection that defendant did not have the burden of proof, and that instructionalleviated any prejudice to defendant (see People v Green, 144 AD3d 589, 590 [2016], lv denied28 NY3d 1184 [2017]). We further agree with defendant that the prosecutor improperlydenigrated the defense and defense counsel during summation (see People v Morgan, 111 AD3d1254, 1255 [2013]). Thus, the prosecutor engaged in two instances of misconduct, one ofwhich was addressed by the court's instruction of the jury, but we conclude that such misconductwas not so pervasive or egregious as to deny defendant a fair trial (see Barnes, 139 AD3dat 1374).
Defendant further contends that he was denied effective assistance of counsel. Defensecounsel objected to the two instances of prosecutorial misconduct during summation. Inasmuchas we have concluded that there were no other instances of prosecutorial misconduct, defendantwas not denied effective assistance of counsel by counsel's alleged failure to object to theclaimed misconduct (see People vBarber-Montemayor, 138 AD3d 1455, 1456 [2016], lv denied 28 NY3d 926[2016]; People v Hill, 82 AD3d1715, 1716 [2011], lv denied 17 NY3d 806 [2011]). Defendant was also not deniedeffective assistance of counsel by counsel's alleged failure to object to the use of restraints ondefendant while he testified before the grand jury. The "overwhelming nature of the evidenceadduced before the grand jury eliminated the possibility that defendant was prejudiced as a resultof [any] improper shackling" (People vBrooks, 140 AD3d 1780, 1781 [2016]; see People v Morales, 132 AD3d 1410, 1410 [2015], lv denied27 NY3d 1072 [2016]). Defendant's remaining claims of ineffective assistance of counsel arewithout merit.
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Carni,Lindley, Troutman and Winslow, JJ.