| People v Pittman |
| 2018 NY Slip Op 02506 [160 AD3d 1130] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Darryl Pittman, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 15,2015 in Schenectady County, upon a verdict convicting defendant of the crimes of assault in thesecond degree and criminal possession of a weapon in the third degree.
In October 2014, defendant was charged in a two-count indictment with assault in the seconddegree and criminal possession of a weapon in the third degree. These charges stemmed from anincident where defendant stabbed the victim in the chest with a knife. In May 2015, a jury trialwas held and defendant was convicted as charged. Thereafter, Supreme Court sentenceddefendant, as a second felony offender, to an aggregate prison term of seven years with five yearsof postrelease supervision. Defendant now appeals. We affirm.
Initially, we agree with Supreme Court's ruling that CPL 710.30 notice was not required withregard to a statement made by defendant that was overheard by a police officer while defendantwas in a holding cell awaiting arraignment. Said statement was not made to a public servant or aperson acting as an agent of law enforcement, but was made to another individual whom thepolice were holding within the holding cell; therefore, the People were not required to providedefendant notice pursuant to CPL 710.30 (see People v Phoenix, 115 AD3d 1058, 1062-1063 [2014], lvdenied 23 NY3d 1024 [2014]; People v Cole, 24 AD3d 1021, 1025 [2005], lv denied 6NY3d 832 [2006]).
Defendant's remaining contentions require little discussion. His contention that [*2]Supreme Court's Sandoval ruling was an abuse of discretionwas not properly preserved for appellate review as he did not object at the close of the hearing(see People v Stacconi, 151 AD3d1395, 1397 [2017]; People vRamos, 129 AD3d 1205, 1207 [2015], lv denied 26 NY3d 971 [2015]).Defendant's further contention that he was deprived of a fair trial by improper comments made bythe prosecutor during summation is not preserved for our review as defendant did not object tothese comments at trial (see People vDevictor-Lopez, 155 AD3d 1434, 1436 n [2017]; People v Scippio, 144 AD3d 1184, 1187 [2016], lv denied28 NY3d 1150 [2017]). Also unpreserved is defendant's contention that he was improperlysentenced as a second felony offender as he failed to object at the time of sentencing (see People v House, 119 AD3d1289, 1290 [2014]; People vDeschaine, 116 AD3d 1303, 1304 [2014], lv denied 23 NY3d 1019 [2014]); inany event, the record demonstrates that the People's notice and Supreme Court's imposition of thesentence substantially complied with CPL 400.21 (see People v Williams, 155 AD3d 1253, 1255 [2017]; People v Morse, 111 AD3d 1161,1161 [2013], lv denied 23 NY3d 1040 [2014]). Additionally, Supreme Court posingquestions in open court to defense counsel—rather than to defendant directly—wasnot a violation of the statute (see People v Morse, 111 AD3d at 1161-1162; People v Ellis, 53 AD3d 776, 777[2008]).
Garry, P.J., Egan Jr., Lynch and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.