Opinion
2012-01-31
The PEOPLE, etc., respondent, v. Efrain RIVERA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered June 3, 2009, convicting him of robbery in the second degree and burglary in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Marrus, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress his oral statement made to law enforcement officers.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the trial court did not, in effect, deprive him of the right to challenge the voluntariness of a statement he made at a hospital by precluding certain evidence. In this regard, the trial court providently exercised its discretion in precluding the defendant's hospital record and photographs taken of him hours after he made his statement, as any probative value that evidence may have had would have been substantially outweighed by its prejudicial effect ( see People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728; People v. Jessamy, 282 A.D.2d 288, 289, 725 N.Y.S.2d 6).
The defendant correctly contends that his statement made at the scene of the crime, which was made without the benefit of Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and after he had been handcuffed and subject to express questioning, should have been suppressed ( see People v. O'Connor, 6 A.D.3d 738, 739–740, 775 N.Y.S.2d 98; People v. Hardy, 5 A.D.3d 792, 793, 775 N.Y.S.2d 322; People v. Rifkin, 289 A.D.2d 262, 263, 733 N.Y.S.2d 710; People v. Soto, 183 A.D.2d 926, 927, 584 N.Y.S.2d 160). Nevertheless, the admission of that statement was harmless beyond a reasonable doubt, particularly in light of the defendant's own admissions during his testimony at trial ( see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Graham, 48 A.D.3d 265, 266, 856 N.Y.S.2d 7; People v. Reid, 34 A.D.3d 1273, 1273, 825 N.Y.S.2d 619).
The defendant's contentions that the prosecutor's allegedly improper questions during cross-examination of him and comments during summation constitute reversible error are unpreserved for appellate review ( see CPL 470.05[2]; People v. West, 86 A.D.3d 583, 584, 926 N.Y.S.2d 659; People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121; People v. Crawford, 54 A.D.3d 961, 962, 863 N.Y.S.2d 830). In any event, the questions the prosecutor asked the defendant were either proper or do not warrant reversal ( see People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305; People v. Siriani, 27 A.D.3d 670, 670, 811 N.Y.S.2d 127; People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572). The prosecutor's remarks during summation were mostly either fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564). Although some of the remarks were improper, they were not sufficiently prejudicial to require reversal ( see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Valerio, 70 A.D.3d 869, 894 N.Y.S.2d 157).
The defendant was afforded meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).