Opinion
2014-05-7
The PEOPLE, etc., respondent, v. Dario ORMEJUSTE, appellant.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Andrea M. DiGregorio of counsel), for respondent.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Andrea M. DiGregorio of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.), rendered July 25, 2012, convicting him of murder in the first degree, murder in the second degree (three counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (St. George, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the evidence presented at the suppression hearing demonstrated that the initial warrantless entry into his home by the police fell within the emergency doctrine exception to the warrant requirement ( see People v. Molnar, 98 N.Y.2d 328, 329, 746 N.Y.S.2d 673, 774 N.E.2d 738;People v. Mitchell, 39 N.Y.2d 173, 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607,cert. denied426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191;People v. Longboat, 278 A.D.2d 836, 718 N.Y.S.2d 761). Accordingly, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence obtained from his home.
The defendant contends that the statements he made to law enforcement officials should have been suppressed. However, the specific arguments asserted by the defendant on appeal to support this contention are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Fowler, 101 A.D.3d 898, 954 N.Y.S.2d 919;People v. Philips, 30 A.D.3d 620, 818 N.Y.S.2d 227). In any event, the defendant's contention is without merit ( see People v. White, 40 A.D.3d 662, 836 N.Y.S.2d 204,affd. on other grounds, 10 N.Y.3d 286, 856 N.Y.S.2d 534, 886 N.E.2d 156,cert. denied555 U.S. 897, 129 S.Ct. 221, 172 L.Ed.2d 167;People v. Velazquez, 33 A.D.3d 352, 822 N.Y.S.2d 65;People v. Hester, 161 A.D.2d 665, 556 N.Y.S.2d 97). Accordingly, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
The defendant's contention that various comments made by the prosecutor during summation were improper and require reversal is unpreserved for appellate review, as the defendant did not object to any of those remarks ( see People v. Kinard, 96 A.D.3d 976, 946 N.Y.S.2d 504). In any event, the contested remarks were responsive to arguments and theories presented in the defense's summation ( see People v. Brown, 90 A.D.3d 575, 936 N.Y.S.2d 537,affd.21 N.Y.3d 739, 977 N.Y.S.2d 723, 999 N.E.2d 1168), were permissible rhetorical comment ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. McGowan, 111 A.D.3d 850, 975 N.Y.S.2d 147), or constituted harmless error ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Hanson, 100 A.D.3d 771, 953 N.Y.S.2d 684,lv. granted,21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.