Opinion
107917
04-12-2018
The PEOPLE of the State of New York, Respondent, v. Darryl PITTMAN, Appellant.
Danielle Neroni Reilly, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Danielle Neroni Reilly, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 15, 2015 in Schenectady County, upon a verdict convicting defendant of the crimes of assault in the second degree and criminal possession of a weapon in the third degree.
In October 2014, defendant was charged in a two-count indictment with assault in the second degree and criminal possession of a weapon in the third degree. These charges stemmed from an incident where defendant stabbed the victim in the chest with a knife. In May 2015, a jury trial was held and defendant was convicted as charged. Thereafter, Supreme Court sentenced defendant, as a second felony offender, to an aggregate prison term of seven years with five years of postrelease supervision. Defendant now appeals. We affirm.
Initially, we agree with Supreme Court's ruling that CPL 710.30 notice was not required with regard to a statement made by defendant that was overheard by a police officer while defendant was in a holding cell awaiting arraignment. Said statement was not made to a public servant or a person acting as an agent of law enforcement, but was made to another individual whom the police were holding within the holding cell; therefore, the People were not required to provide defendant notice pursuant to CPL 710.30 (see People v. Phoenix, 115 A.D.3d 1058, 1062–1063, 981 N.Y.S.2d 851 [2014], lv denied 23 N.Y.3d 1024, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014] ; People v. Cole, 24 A.D.3d 1021, 1025, 807 N.Y.S.2d 166 [2005], lv denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006] ).
Defendant's remaining contentions require little discussion. His contention that Supreme Court's Sandoval ruling was an abuse of discretion was not properly preserved for appellate review as he did not object at the close of the hearing (see People v. Stacconi, 151 A.D.3d 1395, 1397, 58 N.Y.S.3d 201 [2017] ; People v. Ramos, 129 A.D.3d 1205, 1207, 10 N.Y.S.3d 736 [2015], lv denied 26 N.Y.3d 971, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ). Defendant's further contention that he was deprived of a fair trial by improper comments made by the prosecutor during summation is not preserved for our review as defendant did not object to these comments at trial (see People v. Devictor–Lopez, 155 A.D.3d 1434, 1436 n., 66 N.Y.S.3d 346 [2017] ; People v. Scippio, 144 A.D.3d 1184, 1187, 41 N.Y.S.3d 563 [2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ). Also unpreserved is defendant's contention that he was improperly sentenced as a second felony offender as he failed to object at the time of sentencing (see People v. House, 119 A.D.3d 1289, 1290, 989 N.Y.S.2d 919 [2014] ; People v. Deschaine, 116 A.D.3d 1303, 1304, 984 N.Y.S.2d 246 [2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ); in any event, the record demonstrates that the People's notice and Supreme Court's imposition of the sentence substantially complied with CPL 400.21 (see People v. Williams, 155 A.D.3d 1253, 1255, 64 N.Y.S.3d 742 [2017] ; People v. Morse, 111 A.D.3d 1161, 1161, 975 N.Y.S.2d 496 [2013], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ). Additionally, Supreme Court posing questions in open court to defense counsel—rather than to defendant directly—was not a violation of the statute (see People v. Morse, 111 A.D.3d at 1161–1162, 975 N.Y.S.2d 496 ; People v. Ellis, 53 A.D.3d 776, 777, 861 N.Y.S.2d 485 [2008] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Egan Jr., Lynch and Rumsey, JJ., concur.