Opinion
1139 KA 13-00264
11-14-2014
The PEOPLE of the State of New York, Respondent, v. Jerad STALKER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that he was deprived of a fair trial by the improper admission of rebuttal testimony and the failure of County Court to give the jury a limiting instruction with respect to the use of such testimony. The rebuttal testimony concerned a statement made by defendant to a State Trooper regarding property stolen during the burglary. We note at the outset that, by failing to seek a ruling with respect to the statement at issue or to object to its admission at trial, defendant abandoned any contention that the statement should have been suppressed (see People v. Adams, 90 A.D.3d 1508, 1509, 936 N.Y.S.2d 406, lv. denied 18 N.Y.3d 954, 944 N.Y.S.2d 483, 967 N.E.2d 708 ; People v.
Nix, 78 A.D.3d 1698, 1699, 912 N.Y.S.2d 832, lv. denied 16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155, cert. denied ––– U.S. ––––, 132 S.Ct. 157, 181 L.Ed.2d 72 ). Defendant failed to preserve for our review his further contentions that the statement was improperly admitted in evidence as an admission (see generally People v. Broadus, 8 A.D.3d 398, 398, 777 N.Y.S.2d 759, lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572 ), and that the court erred in failing to give a limiting instruction with respect to its use (see CPL 470.05[2] ; People v. Portis, 141 A.D.2d 773, 773–774, 529 N.Y.S.2d 598, lv. denied 72 N.Y.2d 913, 532 N.Y.S.2d 762, 528 N.E.2d 1235 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). In addition, we conclude that defendant was not denied effective assistance of counsel based upon defense counsel's failure to move to suppress the statement to the Trooper (see People v. De Mauro, 48 N.Y.2d 892, 893–894, 424 N.Y.S.2d 884, 400 N.E.2d 1336 ), or to request a limiting instruction with respect to that statement (see People v. VanDemps, 118 A.D.3d 1146, 1148, 987 N.Y.S.2d 507, lv. denied 23 N.Y.3d 1061, 994 N.Y.S.2d 320, 18 N.E.3d 1141 ).
Defendant also failed to preserve for our review his contentions that the evidence is not legally sufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ), and that he was deprived of a fair trial by the prosecutor's allegedly improper remarks during summation (see People v. James, 114 A.D.3d 1202, 1206–1207, 980 N.Y.S.2d 645, lv. denied 22 N.Y.3d 1199, 986 N.Y.S.2d 420, 9 N.E.3d 915 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Viewing the evidence in light of the elements of the 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 conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We further conclude that the court's Sandoval ruling did not constitute an abuse of discretion (see People v. Stevens, 109 A.D.3d 1204, 1205, 971 N.Y.S.2d 637, lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.