Opinion
KA 01-00520
October 1, 2002.
Appeal from a judgment of Orleans County Court (Punch, J.), entered April 12, 2000, convicting defendant after a jury trial of, inter alia, murder in the second degree.
ROBERT M. GOLDSTEIN, BUFFALO, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE KERSCH BOGAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him of murder in the second degree (Penal Law § 125.25) and robbery in the first degree (§ 160.15 [1]), defendant contends that he was deprived of a fair trial by prosecutorial misconduct on summation. We reject that contention. The isolated remark at issue was not so egregious as to deprive defendant of a fair trial ( see People v. Robinson, 267 A.D.2d 981, 981, lv denied 95 N.Y.2d 838; People v. Tolliver, 267 A.D.2d 1007, 1008, lv denied 94 N.Y.2d 908). Moreover, the curative instruction, which was proposed by defense counsel and which the jury is presumed to have followed ( see People v. Kimble, 289 A.D.2d 1062, 1063; People v. Massimi, 191 A.D.2d 969), negated any prejudice to defendant ( see People v. Eldridge, 288 A.D.2d 845, lv denied 97 N.Y.2d 681; People v. Marzug, 280 A.D.2d 974, 975, lv denied 96 N.Y.2d 904).
County Court properly denied the motion of defendant to suppress his initial statement to the police. The evidence at the suppression hearing establishes that defendant voluntarily met with investigators and accompanied them to the police station, and that defendant had no reason to believe that he was not free to leave until after the questioning was completed. We therefore agree with the suppression court that defendant was not in custody when questioned and that Miranda warnings were not required ( see People v. Greene, 292 A.D.2d 832; People v. Stone, 283 A.D.2d 980, lv denied 96 N.Y.2d 925; People v. Hurley, 154 A.D.2d 617, 618). In any event, any error in refusing to suppress defendant's initial statement is harmless beyond a reasonable doubt ( see People v. Crimmins, 36 N.Y.2d 230, 237; People v. Thompson [Denise], 295 A.D.2d 917; People v. Snyder, 281 A.D.2d 894, lv denied 96 N.Y.2d 868). Subsequent statements by defendant, which also were admitted at trial, were more incriminating than his initial statement.
The court properly admitted evidence of defendant's subornation of perjury. "Evidence that a defendant attempted to procure false testimony or to corrupt a witness is generally admissible as evidence of consciousness of guilt" ( People v. Violante, 144 A.D.2d 995, 996, lv denied 73 N.Y.2d 897, citing People v. Davis, 43 N.Y.2d 17, 26, cert denied 435 U.S. 998, rearg dismissed 61 N.Y.2d 670; see generally People v. Leyra, 1 N.Y.2d 199, 208-209). Moreover, the probative value of the evidence outweighed its potential for prejudice to defendant ( cf. People v. Pugh, 236 A.D.2d 810, 812, lv denied 89 N.Y.2d 1099; see generally Davis, 43 N.Y.2d at 27). Finally, we conclude that the court did not err in admitting defendant's grand jury testimony ( see People v. Curdgel, 83 N.Y.2d 862, 864-865). Contrary to defendant's contention, the grand jury testimony was not involuntary within the meaning of CPL 60.45 (2)(b)(i) merely because it was induced by a promise of leniency ( see generally People v. Ward, 241 A.D.2d 767, 769-770, lv denied 91 N.Y.2d 837; People v. Richardson, 202 A.D.2d 958, lv denied 83 N.Y.2d 914; People v. Keene, 148 A.D.2d 977, 978).