Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Don PETERKIN, Defendant–Appellant.
Kathleen P. Reardon, Rochester, for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
Kathleen P. Reardon, Rochester, for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, six counts of robbery in the first degree (Penal Law § 160.15[4] ) and one count of burglary in the first degree (§ 140.30[4] ), arising from two separate incidents. We reject defendant's contention that Supreme Court erred in refusing to suppress his statements to the police. The evidence presented at the suppression hearing supports the determination of the court that defendant's waiver of his Miranda rights was knowing, voluntary and intelligent. Contrary to defendant's contention, the record of the suppression hearing fails to establish that he was intoxicated at the time he waived those rights “to the degree of mania, or of being unable
to understand the meaning of his statements” ( People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157; see People v. Lake, 45 A.D.3d 1409, 1410, 845 N.Y.S.2d 649, lv. denied 10 N.Y.3d 767, 854 N.Y.S.2d 329, 883 N.E.2d 1264). Contrary to defendant's further contention, “[i]t is well settled that where a person in police custody has been issued Miranda warnings and voluntarily and intelligently waives [his or her Miranda ] rights, it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous” ( People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64, lv. denied 64 N.Y.2d 889, 487 N.Y.S.2d 1036, 476 N.E.2d 1013, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621; see People v. Jacobson, 60 A.D.3d 1326, 1327, 876 N.Y.S.2d 259, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078). The evidence presented at the suppression hearing also supports the court's determination that defendant remained in custody between the reading of the Miranda warnings and the renewed questioning of defendant and that such a time period was not unreasonable ( see People v. Cooper, 59 A.D.3d 1052, 1054, 872 N.Y.S.2d 793, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587; People v. Hawkes, 39 A.D.3d 1209, 1211, 834 N.Y.S.2d 415, lv. denied 9 N.Y.3d 844, 845, 840 N.Y.S.2d 771, 872 N.E.2d 884; People v. Leflore, 303 A.D.2d 1041, 1042, 757 N.Y.S.2d 208, lv. denied 100 N.Y.2d 563, 763 N.Y.S.2d 820, 795 N.E.2d 46).
Defendant contends that the evidence is legally insufficient to support the conviction of counts 1 through 15 of the indictment because he established that he was too intoxicated to form the intent to commit the crimes charged in those counts, and thus the People failed to establish that he had the specific intent to commit those crimes. Defendant failed to move for a trial order of dismissal on that ground, however, and he therefore failed to preserve his contention for our review ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, that contention is without merit. Although there was some evidence tending to establish that defendant had consumed alcohol prior to committing the crimes at issue, “[v]iewing the evidence in the light most favorable to the People ..., we conclude that a rational trier of fact could find that defendant had the requisite intent to commit [those] crimes” ( People v. Martinez, 73 A.D.3d 1432, 1433, 900 N.Y.S.2d 581, lv. denied 15 N.Y.3d 807, 908 N.Y.S.2d 167, 934 N.E.2d 901). Defendant further contends that the verdict with respect to counts 16 and 17 of the indictment, charging defendant with robbery in the first degree (Penal Law § 160.15[4] ) and unlawful imprisonment in the first degree (§ 135.10), respectively, is against the weight of the evidence. Viewing the evidence in light of the elements of those crimes 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), we reject defendant's contention ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant contends that his right of confrontation was violated by the admission in evidence of a report regarding part of the DNA analysis of a plastic bottle that defendant forcibly inserted into the vagina of the adult female victim. That contention is not preserved for our review inasmuch as defendant objected to the admission of that report solely on the ground that the People failed to establish a sufficient foundation ( see People v. Bolling, 49 A.D.3d 1330, 1331, 853 N.Y.S.2d 803;
People v. Robinson, 41 A.D.3d 1183, 837 N.Y.S.2d 800, lv. denied 9 N.Y.3d 880, 842 N.Y.S.2d 793, 874 N.E.2d 760). In any event, that contention is without merit ( see generally People v. Freycinet, 11 N.Y.3d 38, 41–42, 862 N.Y.S.2d 450, 892 N.E.2d 843).
Contrary to defendant's further contention, we conclude that defense counsel was not ineffective in failing to request a charge on the affirmative defense that the weapon used in the crimes at issue “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal Law § 160.15[4]; see § 140.30[4] ). “There can be no denial of effective assistance of ... counsel arising from [defense] counsel's failure to ‘make a motion or argument that has little or no chance of success' ” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883). Here, “[t]here is no reasonable view of the evidence that would allow the jury to conclude, without resorting to speculation, that defendant” displayed a weapon that was inoperable or unloaded ( People v. Taylor, 83 A.D.3d 1505, 1506, 921 N.Y.S.2d 455, lv. denied 17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102; see People v. Darden, 57 A.D.3d 1522, 871 N.Y.S.2d 522, lv. denied 12 N.Y.3d 815, 881 N.Y.S.2d 22, 908 N.E.2d 930). The fact that no weapon was discovered does not warrant the submission of an instruction on the affirmative defense ( see People v. Flores, 47 A.D.3d 506, 507, 849 N.Y.S.2d 257, lv. denied 10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86). We have considered defendant's remaining allegations of ineffective assistance of counsel and, viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The sentence is not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.