Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Andres P. GUTIERREZ, Defendant–Appellant.
Donald R. Gerace, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Donald R. Gerace, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[4] ) and robbery in the second degree (§ 160.10[1] ). Defendant failed to preserve for our review his contention that the integrity of the grand jury proceeding was impaired pursuant to CPL 210.35(5) inasmuch as he did not move to dismiss the indictment on that ground ( see People v. West, 4 A.D.3d 791, 792–793, 772 N.Y.S.2d 166;see also People v. Workman, 277 A.D.2d 1029, 1031, 716 N.Y.S.2d 198,lv. denied96 N.Y.2d 764, 725 N.Y.S.2d 291, 748 N.E.2d 1087;People v. Volious, 244 A.D.2d 871, 872, 668 N.Y.S.2d 123,lv. denied93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949). In any event, we conclude that the prosecutor's questioning of defendant before the grand jury was not improper.
We reject defendant's further contention that County Court erred in refusing to suppress his statements to the police. The record reflects that defendant was not given “ ‘false legal advice’ ” by the police ( People v. Salgado, 130 A.D.2d 960, 961, 516 N.Y.S.2d 556,lv. denied70 N.Y.2d 754, 520 N.Y.S.2d 1030, 514 N.E.2d 1382). “Even assuming, arguendo, that the police misled defendant, we conclude that such deception did not create a substantial risk that the defendant might falsely incriminate himself” ( People v. Alexander, 51 A.D.3d 1380, 1382, 857 N.Y.S.2d 418,lv. denied11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [internal quotation marks omitted and emphasis added] ), nor can it be said that the alleged deception was “ ‘so fundamentally unfair as to deny [defendant] due process' ” ( People v. Brown, 39 A.D.3d 886, 887, 835 N.Y.S.2d 451,lv. denied9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752, quoting People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188).
Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to the alleged absence of corroboration of the accomplice testimony, inasmuch as he failed to renew his motion for a trial order of dismissal on that ground after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, we conclude that defendant's contention lacks merit. The People presented sufficient corroborative evidence connecting defendant to the commission of the robbery ( see People v. Reome, 15 N.Y.3d 188, 191–192, 906 N.Y.S.2d 788, 933 N.E.2d 186). Defendant likewise failed to preserve for our review his contention that the evidence is legally insufficient to establish that he participated in the robbery inasmuch as he failed to move for a trial order of dismissal on that ground ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Washington, 89 A.D.3d 1516, 1517, 933 N.Y.S.2d 499,lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717). In any event, that contention lacks merit as well ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject defendant's contention that the court erred in refusing to use his proposed language in charging the jury with respect to the issue of accessorial liability ( see People v. Leach, 293 A.D.2d 760, 761, 741 N.Y.S.2d 443,lv. denied98 N.Y.2d 677, 746 N.Y.S.2d 467, 774 N.E.2d 232;People v. Gonzalez, 279 A.D.2d 637, 720 N.Y.S.2d 360,lv. denied96 N.Y.2d 800, 726 N.Y.S.2d 378, 750 N.E.2d 80), and we conclude that the court's charge on that issue was proper ( seePenal Law § 20.00; People v. Perez, 89 A.D.3d 1393, 1394–1395, 932 N.Y.S.2d 628,lv. denied18 N.Y.3d 961, 944 N.Y.S.2d 489, 967 N.E.2d 714;People v. Delphin, 26 A.D.3d 343, 343–344, 812 N.Y.S.2d 552,lv. denied6 N.Y.3d 893, 817 N.Y.S.2d 628, 850 N.E.2d 675).
Finally, defendant contends that he was denied a fair trial by prosecutorial misconduct on summation. He failed to preserve that contention for our review ( seeCPL 470.05[2]; People v. Wallace, 59 A.D.3d 1069, 1070–1071, 873 N.Y.S.2d 403,lv. denied12 N.Y.3d 861, 881 N.Y.S.2d 672, 909 N.E.2d 595), and in any event it has no merit. Contrary to defendant's contention, “[t]he majority of the comments in question were within the broad bounds of rhetorical comment permissible during summations ..., and they were either a fair response to defense counsel's summation or fair comment on the evidence ... Even assuming, arguendo, that some of the prosecutor's comments were beyond those bounds, we conclude that they were not so egregious as to deprive defendant of a fair trial” ( People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [internal quotation marks omitted] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.