Opinion
04-12-2017
The PEOPLE, etc., respondent, v. Jonathan WALLACE, appellant.
Gerald Zuckerman, Croton–on–Hudson, NY, for appellant, and appellant pro se. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.
Gerald Zuckerman, Croton–on–Hudson, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cacace, J.), rendered July 15, 2014, convicting him of rape in the third degree, attempted criminal sex act in the first degree, and unlawful imprisonment in the second 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 statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of his constitutional right to present a complete defense because of the Supreme Court's application of the Rape Shield Law (CPL 60.42 ) to prevent him from questioning the victim about certain Instagram postings is unpreserved for appellate review (see CPL 470.05[2] ; People v. Shaw, 126 A.D.3d 1016, 1016, 6 N.Y.S.3d 119 ; People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618 ). In any event, the defendant's right to present a defense was not unduly curtailed by the court's application of the Rape Shield Law (see People v. Shaw, 126 A.D.3d at 1016, 6 N.Y.S.3d 119 ).
The defendant's argument that the loss of a surveillance video deprived him of a fair trial is unpreserved for appellate review, as he did not object to the testimony about the contents of the tape or request an adverse inference charge (see CPL 470.05[2] ). In any event, the defendant's contention is without merit. The defendant also failed to preserve for appellate review his claim that he was deprived of a fair trial by certain comments made by the prosecutor on summation regarding the video because he failed to object to the challenged remarks (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Crosdale, 103 A.D.3d 749, 750, 962 N.Y.S.2d 160 ). In any event, the challenged remarks were fair comment on the evidence or constituted a fair response to defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Simmons, 106 A.D.3d at 1117, 965 N.Y.S.2d 618 ; People v. Morency, 104 A.D.3d 877, 878, 961 N.Y.S.2d 301 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention, raised in his pro se supplemental brief, that his right to counsel was violated when the Supreme Court denied that branch of his motion which was to suppress statements he made to the police, is without merit (see People v. Cook, 134 A.D.3d 1241, 1244, 20 N.Y.S.3d 744 ; People v. Augustine, 89 A.D.3d 1238, 1239, 1240, 932 N.Y.S.2d 247, affd. 21 N.Y.3d 949, 969 N.Y.S.2d 849, 991 N.E.2d 707 ).