Opinion
1998-03021.
Decided February 17, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered March 2, 1998, convicting him of manslaughter in the first degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
Laura R. Johnson, New York, N.Y. (Martin M. Lucente of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Michael Gore, and Diana Villanueva of counsel), for respondent.
Before: GLORIA GOLDSTEIN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES and WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly accepted the jury's full and complete verdict. Although the jury initially rendered a partial verdict, which the Supreme Court previously indicated it would accept, its acceptance of that verdict and a declaration of a mistrial as to the remaining charges ( see CPL 310.70[a]) was pre-empted by the jury's subsequent delivery of a full and complete verdict. A mistrial due to a deadlocked jury, once declared, moreover, is not effective until the jury is discharged ( see CPL 310.60; People v. Dawkins, 82 N.Y.2d 226, 230).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Pacheco, 307 A.D.2d 328, lv denied 100 N.Y.2d 623). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
After a pretrial suppression hearing, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. The hearing testimony established that he knowingly and intelligently waived his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436), without requesting an attorney, before speaking with the detectives who recorded the voluntarily supplied statements ( see People v. Lowe, 300 ADd 509; People v. Santarelli, 268 A.D.2d 603, 604; People v. Mejia, 262 A.D.2d 585, 586; People v. Marshall, 244 A.D.2d 508).
The Supreme Court also properly precluded the defendant from introducing evidence of third-party culpability since the proffered evidence was based upon mere speculation and lacked any probative value ( see People v. Primo, 96 N.Y.2d 351, 357; People v. Rodriguez, 295 A.D.2d 456, 457; People v. Malik, 291 A.D.2d 571, 572).
The defendant's challenges to various remarks made by the prosecutor during his summation are unpreserved for appellate review ( see CPL 470.05; People v. Oreckinto, 253 A.D.2d 896) . In any event, the challenged comments were either within the bounds of permissible rhetoric ( see People v. Galloway, 54 N.Y.2d 396), constituted fair comment on the evidence presented ( see People v. Ashwal, 39 N.Y.2d 105), or were harmless under the circumstances ( see People v. Caver, 302 A.D.2d 604, 605).
Taking into consideration the totality of the evidence, the law, and the circumstances of the case, it is evident that the defendant was provided with meaningful assistance and representation from his trial counsel ( see People v. Benevento, 91 N.Y.2d 708; People v. Baldi, 54 N.Y.2d 137, 146).
The imposition of consecutive terms of imprisonment was also appropriate ( see People v. Ramirez, 89 N.Y.2d 444; People v. Lewis, 268 A.D.2d 249, 250; People v. Caver, supra at 605). In addition, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions either are unpreserved for appellate review ( see CPL 470.05) or without merit.
GOLDSTEIN, J.P., ADAMS, TOWNES and MASTRO, JJ., concur.