Opinion
2009-03249
12-31-2014
The PEOPLE, etc., respondent, v. Gillian DOBBINS, appellant.
James L. Iannone, Williston Park, N.Y., for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.
James L. Iannone, Williston Park, N.Y., for appellant, and appellant pro se.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered March 26, 2009, convicting him of robbery in the first degree (four counts) and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Honorof, J.), of the suppression of the defendant's statement to law enforcement officials.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion to sever certain counts of the indictment. The separate offenses were properly joinable in a single indictment pursuant to CPL 200.20(2)(b), since the nature of the proof for each of the offenses was material and admissible as evidence upon the trial of the others (see People v. Kirksey, 107 A.D.3d 825, 825, 966 N.Y.S.2d 682 ; People v. Dayton, 66 A.D.3d 797, 797, 887 N.Y.S.2d 184 ; People v. Killings, 55 A.D.3d 852, 852, 865 N.Y.S.2d 672 ). Inasmuch as the offenses were properly joined in one indictment from the outset, the court lacked the statutory authority to sever them (see CPL 200.20[3] ; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083 ; People v. Kirksey, 107 A.D.3d at 825, 966 N.Y.S.2d 682 ; People v. Salnave, 41 A.D.3d 872, 873, 838 N.Y.S.2d 657 ).
Contrary to the defendant's contention, the evidence presented at the suppression hearing established that he knowingly, voluntarily, and intelligently waived his Miranda rights prior to making his statement to law enforcement officials (see
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ). “ ‘A defendant who refuses to sign a written waiver of his [or her] rights, including a Miranda rights card, may nevertheless orally waive his [or her] rights' ” (People v. Thornton, 87 A.D.3d 663, 664, 928 N.Y.S.2d 358, quoting People v. Saunders, 71 A.D.3d 1058, 1059, 898 N.Y.S.2d 168 ). Here, the defendant impliedly waived his rights by stating that he understood his rights and then willingly answering questions from law enforcement officials after declining to sign the waiver on the Miranda rights card with which he was provided (see People
v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479 ; People v. Thornton, 87 A.D.3d at 664, 928 N.Y.S.2d 358 ; People v. Ridgeway, 101 A.D.2d 555, 562, 476 N.Y.S.2d 940, affd. 64 N.Y.2d 952, 488 N.Y.S.2d 641, 477 N.E.2d 1095 ).
The defendant's contention that certain remarks made by the prosecutor during summation were improper is without merit, as the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, fair response to arguments made by defense counsel in summation, and fair comment upon the evidence (see People v. Galloway, 54 N.Y.2d 396, 400, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Rios, 105 A.D.3d 873, 873, 962 N.Y.S.2d 351 ).
The defendant's contention that the prosecutor improperly introduced evidence of an uncharged crime is unpreserved for appellate review. In any event, any error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Jones, 23 A.D.3d 399, 399, 808 N.Y.S.2d 84 ).
The defendant's remaining contention, raised in his pro se supplemental brief, pertains to matter dehors the record on appeal (see People v. Cuesta, 103 A.D.3d 913, 916, 959 N.Y.S.2d 744 ; People v. Redmond, 41 A.D.3d 514, 515–516, 837 N.Y.S.2d 710 ).