Opinion
November 13, 2000.
Appeal from Judgment of Niagara County Court, Hannigan, J. — Murder, 2nd Degree.
PRESENT: GREEN, J. P., PINE, HURLBUTT, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant contends that County Court erred in denying his motion to suppress statements and physical evidence obtained by the police on the ground that the police exceeded the scope of permissible questioning during their initial encounter with him ( see, People v. Hollman, 79 N.Y.2d 181, 184-185). That contention, however, was not raised in defendant's motion papers or at the Huntley hearing, and it is thus not preserved for our review ( see, People v. Jamison, 219 A.D.2d 853, lv denied 87 N.Y.2d 974, 88 N.Y.2d 966). Defendant's posthearing memorandum of law did not preserve the contention for our review because the contention "was not raised at a time when the People had an evidentiary opportunity to counter" it ( People v. Rodriguez, 188 A.D.2d 564, lv denied 81 N.Y.2d 892).
Viewed in the light most favorable to the People, the circumstantial evidence is legally sufficient to establish defendant's guilt ( see, People v. Williams, 84 N.Y.2d 925, 926; People v. Brown, 231 A.D.2d 956, 957). We reject the contention of defendant that double jeopardy bars his second trial. The misconduct prompting defendant's motions for a mistrial at the first trial "does not constitute that type of prosecutorial overreaching * * * [that would bar] reprosecution on the ground of double jeopardy" ( People v. Copeland, 127 A.D.2d 846, 847; see, People v. Buffin, 244 A.D.2d 925, 926, lv denied 91 N.Y.2d 924). Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct on summation ( see, CPL 470.05; People v. Kidd, 265 A.D.2d 859, lv denied 94 N.Y.2d 824), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). The sentence is neither unduly harsh nor severe.
We reject the contention, raised in the pro se supplemental brief, that defendant was denied effective assistance of counsel based upon counsel's failure to move to dismiss the indictment on the ground of double jeopardy. That motion would have been unsuccessful, and thus, "inasmuch as defendant suffered no prejudice[,] there can be no finding of ineffectiveness" ( People v. Ruise, 248 A.D.2d 749, 750, lv denied 92 N.Y.2d 860). The other alleged instance of ineffectiveness is based upon materials outside the record and thus is not subject to review on direct appeal ( see, People v. Williams, 272 A.D.2d 986; People v. Ford, 184 A.D.2d 1013, lv denied 80 N.Y.2d 929).