Opinion
2012-01-31
The PEOPLE of the State of New York, Respondent, v. Jorge DENIS, Defendant–Appellant.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1] ). We reject defendant's contention that he was unlawfully arrested in his home without an arrest warrant in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, and that County Court therefore erred in refusing to suppress his statements to the police as the fruits of an unlawful arrest. Police officers were in defendant's home pursuant to a valid search warrant and, “[s]ince the requirements for a search warrant were satisfied, there was no constitutional infirmity in the failure of the police to also secure an arrest warrant” ( People v. Lee, 205 A.D.2d 708, 709, 613 N.Y.S.2d 675, lv. denied 84 N.Y.2d 828, 617 N.Y.S.2d 148, 641 N.E.2d 169; see People v. Barfield, 21 A.D.3d 1396, 802 N.Y.S.2d 820, lv. denied 5 N.Y.3d 881, 808 N.Y.S.2d 584, 842 N.E.2d 482; People v. Battista, 197 A.D.2d 486, 602 N.Y.S.2d 865, lv. denied 82 N.Y.2d 891, 610 N.Y.S.2d 158, 632 N.E.2d 468, 83 N.Y.2d 869, 613 N.Y.S.2d 129, 635 N.E.2d 298).
We reject defendant's further contention that there was insufficient evidence to corroborate the accomplice's testimony. Rather, the testimony of the accomplice was amply corroborated by, inter alia, police testimony concerning defendant's conduct while under surveillance, the cocaine seized from the accomplice's van, the large amount of cash found in defendant's home during the execution of the search warrant, and defendant's statements following his arrest ( see generally CPL 60.22[1]; People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186; People v. Taylor, 87 A.D.3d 1330, 929 N.Y.S.2d 917, lv. denied 17 N.Y.3d 956, 936 N.Y.S.2d 82, 959 N.E.2d 1031; People v. Cole, 68 A.D.3d 1763, 892 N.Y.S.2d 694, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and affording the appropriate deference to the jury's credibility determinations ( see People v. Hill, 74 A.D.3d 1782, 902 N.Y.S.2d 755, lv. denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant contends in addition that he was deprived of a fair trial by prosecutorial misconduct. The record establishes, however, that defendant waived his contention because, near the end of the prosecutor's summation, defense counsel consulted with defendant and expressly declined the court's offer of a mistrial based on the prosecutor's misconduct ( see People v. Myers, 87 A.D.3d 1286, 930 N.Y.S.2d 328, lv. denied 18 N.Y.3d 802, 2011 WL 6350562 [Dec. 20, 2011]; People v. Harris, 74 A.D.3d 1844, 902 N.Y.S.2d 735, lv. denied 15 N.Y.3d 893, 912 N.Y.S.2d 581, 938 N.E.2d 1016; see also People v. Santos, 41 A.D.3d 324, 838 N.Y.S.2d 74, lv. denied 9 N.Y.3d 926, 844 N.Y.S.2d 181, 875 N.E.2d 900). Finally, we reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to move for a mistrial or to accept the court's sua sponte offer to grant one. Defendant has failed “ ‘to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcoming[ ]” in that respect ( People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.