Opinion
2013-04-24
The PEOPLE, etc., respondent, v. Kenneth O'KEEFE, appellant.
Michael A. Gajdos, Nesconset, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
Michael A. Gajdos, Nesconset, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered March 31, 2005, convicting him of manslaughter 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 certain evidence and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly determined that his arrest was supported by probable cause, that his statements to the police were made after he knowingly, voluntarily, and intelligently waived his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and that none of the statements was the product of coercion ( see People v. Cotsifas, 100 A.D.3d 1015, 954 N.Y.S.2d 219;People v. Taylor, 98 A.D.3d 593, 949 N.Y.S.2d 209,lv. granted20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926;People v. Santiago, 97 A.D.3d 704, 705–706, 949 N.Y.S.2d 78,lv. granted20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292;People v. DeCampoamor, 91 A.D.3d 669, 670, 936 N.Y.S.2d 256;People v. Bernardez, 73 A.D.3d 1196, 1196–1197, 901 N.Y.S.2d 699). Accordingly, the court properly denied that branch of the defendant's omnibus motion which was to suppress certain evidence and his statements to law enforcement officials.
The defendant contends that the jury verdict was against the weight of the evidence because the People failed to disprove his justification defense beyond a reasonable doubt. However, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the rejection of the justification defense and the verdict of guilt were not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902). At trial, the defendant testified that he used a knife against the unarmed victim. Furthermore, based upon the evidence, the jury could have concluded that the defendant did not reasonably believe that the victim was about to use deadly physical force against him, that the defendant could have, but failed, to retreat, and, consequently, that there was no justifiable basis for his resort to deadly physical force ( see People v. Huddleston, 101 A.D.3d 901, 954 N.Y.S.2d 914;People v. Terrero, 31 A.D.3d 672, 672–673, 818 N.Y.S.2d 288).
While we agree with the defendant's contention that the trial court should not have permitted the People to play for the jury the entire 911 tape, which revealed the suffering of the dying victim ( see People v. Caruso, 6 A.D.3d 980, 984–985, 776 N.Y.S.2d 337), the error was harmless because the evidence of the defendant's guilt, without reference to the error, was overwhelming, and there is no significant probability that the error contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;see also People v. Kello, 96 N.Y.2d 740, 723 N.Y.S.2d 111, 746 N.E.2d 166;People v. Bohan, 100 A.D.3d 767, 953 N.Y.S.2d 864,lv. denied20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327).
Contrary to the defendant's contention, the prosecutor properly cross-examinedhim regarding alleged prior bad acts, since the defendant opened the door to this line of questioning during his direct examination ( see People v. Jackson, 100 A.D.3d 1018, 954 N.Y.S.2d 472). Further, the trial court correctly denied the defendant's request to admit evidence of the victim's prior bad acts and/or criminal record because there was no evidence that the defendant knew about them at the time of the incident ( see People v. DiGuglielmo, 258 A.D.2d 591, 686 N.Y.S.2d 443;cf. People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841).
The defendant's contention that certain comments made by the prosecutor during summation were improper and, thus, deprived him of a fair trial, is unpreserved for appellate review ( seeCPL 470.05[2] ), because he either raised no objection at all, or made general objections without alerting the trial court to his specific claims now raised on appeal or, when his objections were sustained, he failed to seek any further curative relief or move for a mistrial ( see People v. Brooks, 89 A.D.3d 746, 747, 931 N.Y.S.2d 894;People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194). In any event, the complained of statements either constituted fair comment on the evidence, or, where better left unsaid, did not deprive the defendant of a fair trial ( see People v. Gonzalez, 83 A.D.3d 1093, 1094, 921 N.Y.S.2d 545;People v. Miller, 239 A.D.2d 787, 789–790, 658 N.Y.S.2d 482,affd.91 N.Y.2d 372, 670 N.Y.S.2d 978, 694 N.E.2d 61).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).