| People v Townsend |
| 2019 NY Slip Op 03172 [171 AD3d 1479] |
| April 26, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Matthew A. Townsend, Appellant. |
Catherine H. Josh, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedApril 5, 2012. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
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 ofmurder in the second degree (Penal Law § 125.25 [1]). We reject defendant'scontention that County Court erred in refusing to suppress statements that he made to the policeduring the execution of a search warrant at his residence and thereafter at the police station.Defendant contends that he was entitled to suppression of his statements because the policeshould have obtained an arrest warrant before obtaining the search warrant, and thus hisstatements were obtained as a result of illegal police conduct. Inasmuch as " '[t]here is noconstitutional right to be arrested' " (People v McCray, 96 AD3d 1480, 1480 [4th Dept 2012], lvdenied 19 NY3d 1104 [2012]), however, that contention is without merit. We rejectdefendant's further contention that the statement that he made at his residence in response to apolice sergeant's question should be suppressed because the sergeant's inquiry was the equivalentof an interrogation. The sergeant testified at the suppression hearing that she noticed thatdefendant was not wearing footwear and that she asked him if he had a pair of boots orsomething to wear to the police station because it was cold and icy outside. We conclude that herquestion to defendant was not reasonably likely to elicit an incriminating response (see People v Roberts, 121 AD3d1530, 1531 [4th Dept 2014], lv denied 24 NY3d 1122 [2015]; People vYoungblood, 294 AD2d 954, 954 [4th Dept 2002], lv denied 98 NY2d 704 [2002]).Defendant's contention that the statements that he made at the police station were obtained inviolation of his right to counsel is also without merit. Defendant was not in custody in connectionwith an unrelated pending charge in the State of Florida, and thus he had no derivative right tocounsel with respect to the murder charge at issue here (see People v Mantor, 96 AD3d 1645, 1646 [4th Dept 2012], lvdenied 19 NY3d 1103 [2012]; seegenerally People v Lopez, 16 NY3d 375, 377 [2011]). Additionally, the record supportsthe court's determination that defendant knowingly and intelligently waived his Mirandarights (see People v Spoor, 148AD3d 1795, 1796-1797 [4th Dept 2017], lv denied 29 NY3d 1134 [2017]).
Defendant next contends that he was denied a fair trial by prosecutorial misconduct duringvoir dire and on summation. We note that most of the alleged improprieties are not preserved forour review (see People v Machado,144 AD3d 1633, 1635 [4th Dept 2016], lv denied 29 NY3d 950 [2017]; People v Rumph, 93 AD3d 1346,1347 [4th Dept 2012], lv denied 19 NY3d 967 [2012]). In any event, we conclude thatdefendant's contention is without merit. The prosecutor's remarks during voir dire did notdiminish the People's burden of proof (see generally People v Williams, 43 AD3d 1336, 1337 [4th Dept2007]). Furthermore, the prosecutor's remarks on summation "were either a fair response todefense counsel's summation or fair comment on the evidence" (People v McEathron, 86 AD3d915, 916 [4th Dept 2011], lv denied 19 NY3d 975 [2012] [internal quotation marksomitted]; see People v Goupil, 104AD3d 1215, 1216 [4th Dept 2013], lv denied 21 NY3d 943 [2013]). Inasmuch as weconclude that there was no prosecutorial misconduct, we reject defendant's further contention thathe was denied effective assistance of counsel based on defense counsel's failure to object to thealleged improprieties (see People vInman, 134 AD3d 1434, 1435 [4th Dept 2015], lv denied 27 NY3d 999 [2016];Williams, 43 AD3d at 1337).
We reject defendant's contention that the court abused its discretion in precluding certainevidence of third-party culpability (seegenerally People v Powell, 27 NY3d 523, 531 [2016]; People v Schulz, 4 NY3d 521, 529[2005]). The relevance of that evidence was outweighed by its potential for "undue prejudice,delay, and confusion" (Powell, 27 NY3d at 526; see People v Maynard, 143 AD3d 1249, 1251 [4th Dept 2016],lv denied 28 NY3d 1148 [2017]). Finally, the sentence is not unduly harsh or severe.Present—Smith, J.P., Centra, DeJoseph, Curran and Winslow, JJ.