| People v Escamilla |
| 2019 NY Slip Op 00139 [168 AD3d 758] |
| January 9, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alex Escamilla, Appellant. |
Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K.Chun, J.), rendered September 2, 2015, convicting him of murder in the second degree, attemptedmurder in the second degree, assault in the first degree, gang assault in the first degree, andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that his waiver of Miranda rights (see Miranda vArizona, 384 US 436 [1966]) was rendered invalid by a police officer's pre-Mirandaquestioning of the defendant regarding whether he knew why he had been brought to the stationhouse, and the officer's pre-Miranda statement to the defendant that the police wished tospeak to the defendant regarding an incident that occurred at a particular location one weekearlier, is unpreserved for appellate review, as the defendant failed to move to suppress hisstatements to the police on this ground or otherwise raise the issue before the Supreme Court(see CPL 470.05 [2]; People vCruz, 149 AD3d 774, 775 [2017]; People v Coriolan, 138 AD3d 1134 [2016]). In any event, althoughthe officer's question and pre-Miranda statement to the defendant constituted custodialinterrogation (see People v Steele, 277 AD2d 932, 932 [2000]; People vAckerman, 162 AD2d 793, 794 [1990]; People v Thomas, 51 Misc 3d 603, 608-609 [County Ct, MonroeCounty 2016]), the defendant's responses were not inculpatory (see People v Jenkins, 34 AD3d833 [2006]; People vMcMillon, 31 AD3d 136, 138 [2006]), and suppression of the defendant'spost-Miranda statements was not required. "[T]he pre-Miranda statement was notso incriminating in nature that it can be said to have committed the defendant to confessing to thecrime, and there is no evidence that the defendant felt so committed by the pre-Mirandastatement that he believed himself bound to confess" (People v Nelson, 73 AD3d 811, 811 [2010] [citation omitted];see People v Jamison, 307 AD2d 368, 369 [2003]). Nor, despite the defendant'scontention to the contrary, was suppression of the defendant's post-Miranda statements tothe police required under the "continuous chain of events" theory (People v Holmes, 145AD2d 908, 909 [1988] [internal quotation marks omitted]; see People v Bethea, 67 NY2d364 [1986]; People v Chapple, 38 NY2d 112 [1975]; People v Jamison, 307AD2d 368, 368-369 [2003]).
The defendant's contentions regarding alleged prosecutorial misconduct during summationare partially unpreserved for appellate review (see CPL 470.05 [2]; People v Fletcher, 130 AD3d1063, 1065 [2015], affd 27 NY3d 1177 [2016]), and, in any event, the challengedremarks were either permissible rhetorical comment (see People v Galloway, 54 NY2d396 [1981]; People v Macuil, 67AD3d 1025, 1026 [2009]), fair response to the arguments and issues raised by the defense(see People v Halm, 81 NY2d 819, 821 [1993]), fair comment on the evidence (seePeople v Ashwal, 39 NY2d 105, 109 [1976]), cured by the Supreme Court's charge andinstructions to the jury, to which the defendant did not object (see People v Pocesta, 71 AD3d920 [2010]), or, if improper, were not so egregious as to deprive the defendant of a fair trial(see People v Persaud, 98 AD3d527, 529 [2012]; People v Pocesta, 71 AD3d at 921).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Balkin, J.P., Sgroi, Miller andConnolly, JJ., concur.