| People v Crosby |
| 2018 NY Slip Op 00988 [158 AD3d 1300] |
| February 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jerry Crosby, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (John J. Gilsenan of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedNovember 14, 2014. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree (two counts), robbery in the first degree, burglary in the first degree and criminalpossession of stolen property in the fifth 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 twocounts of murder in the second degree (Penal Law § 125.25 [3]), robbery in the firstdegree (§ 160.15 [1]), burglary in the first degree (§ 140.30 [2]), andcriminal possession of stolen property in the fifth degree (§ 165.40). Contrary todefendant's contention, County Court did not err in refusing to suppress his statements to thepolice. The evidence at the suppression hearing established that, when a police detective wasadministering the Miranda warnings, defendant said that his lawyer, mother, brother, andsister were on their way to the police station. The detective finished administering the warningsand, without hesitation, defendant said that he understood the warnings and agreed to waive hisrights and to speak with the police. We agree with the court that defendant's statement was not anunequivocal request for the assistance of counsel and thus, contrary to defendant's contention, theright to counsel did not attach (see generally People v Grice, 100 NY2d 318, 320-321[2003]). A request for the assistance of counsel must be unequivocal (see People v Mitchell, 2 NY3d272, 276 [2004]). " 'Whether a particular request [for counsel] is or is notunequivocal is a mixed question of law and fact that must be determined with reference to thecircumstances surrounding the request including the defendant's demeanor [and] manner ofexpression[,] and the particular words found to have been used by the defendant' " (People v Barber, 124 AD3d 1312,1313 [4th Dept 2015], lv dismissed 26 NY3d 965 [2015], quoting People vGlover, 87 NY2d 838, 839 [1995]). Here, defendant did not "adequately apprise[ ] the policethat he had retained an attorney with respect to the matter under investigation and that he wishedhis attorney to be present during questioning" (People v Ellis, 58 NY2d 748, 750 [1982];see Mitchell, 2 NY3d at 276; People v Henry, 111 AD3d 1321, 1322 [4th Dept 2013], lvdenied 23 NY3d 1021 [2014]).
Defendant contends that the evidence is not legally sufficient to establish that he is guilty ofthe crimes charged. We reject that contention, and we conclude that the evidence, viewed in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), islegally sufficient to support the conviction. The People presented evidence that intruders forciblyentered the victim's residence and stole a television and coin sets, that the items were forciblytaken from the victim, and that the victim was killed during the robbery and burglary (seePenal Law §§ 125.25 [3]; 140.30 [2]; 160.15 [1]). The People also presentedevidence that defendant took part in the crimes. Three fresh droplets of blood that matcheddefendant were recovered from the victim's residence, including in the area where the televisionhad been removed, and defendant's blood was also found on one of the coin sets that was laterrecovered from a pawn [*2]broker, who testified that defendanthad sold him the coin sets a few days after the homicide. A pawn broker receipt and a coin boxmatching the coin sets were also recovered from defendant's residences.
Contrary to defendant's further contention, viewing the evidence in light of the elements ofmurder, robbery, and burglary as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). It is well settled that issues of credibility and the weight to beaccorded to the evidence are primarily for the jury's determination (see People v Witherspoon, 66 AD3d1456, 1457 [4th Dept 2009], lv denied 13 NY3d 942 [2010]), and we perceive noreason to disturb the jury's determination of those issues in this case.
Defendant's contention that the court violated the best evidence rule by allowing a policedetective to testify with respect to what defendant said during a videotaped interrogation ratherthan playing the contents of the videotape for the jury is not preserved for our review (see People v Steinhilber, 133 AD3d798, 799 [2d Dept 2015], lv denied 27 NY3d 1155 [2016]). In any event, evenassuming, arguendo, that the court erred, we conclude that any error was harmless (see People v Haggerty, 23 NY3d871, 876 [2014]). Defendant's remaining contention that he was denied a fair trial based onprosecutorial misconduct on summation is not preserved for our review (see People v Lewis, 154 AD3d1329, 1330 [4th Dept 2017]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Centra, J.P., Carni, DeJoseph, NeMoyer and Troutman, JJ.