Opinion
140 KA 12–01363
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Matthew A. TOWNSEND, Defendant–Appellant.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ). We reject defendant's contention that County Court erred in refusing to suppress statements that he made to the police during the execution of a search warrant at his residence and thereafter at the police station. Defendant contends that he was entitled to suppression of his statements because the police should have obtained an arrest warrant before obtaining the search warrant, and thus his statements were obtained as a result of illegal police conduct. Inasmuch as " ‘[t]here is no constitutional right to be arrested’ " ( People v. McCray, 96 A.D.3d 1480, 1480, 946 N.Y.S.2d 744 [4th Dept. 2012], lv denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ), however, that contention is without merit. We reject defendant's further contention that the statement that he made at his residence in response to a police sergeant's question should be suppressed because the sergeant's inquiry was the equivalent of an interrogation. The sergeant testified at the suppression hearing that she noticed that defendant was not wearing footwear and that she asked him if he had a pair of boots or something to wear to the police station because it was cold and icy outside. We conclude that her question to defendant was not reasonably likely to elicit an incriminating response (see People v. Roberts, 121 A.D.3d 1530, 1531, 993 N.Y.S.2d 825 [4th Dept. 2014], lv denied 24 NY3d 1122, 27 N.E.3d 478 [2015] ; People v. Youngblood, 294 A.D.2d 954, 954, 742 N.Y.S.2d 762 [4th Dept. 2002], lv denied 98 N.Y.2d 704, 747 N.Y.S.2d 423, 776 N.E.2d 12 [2002] ). Defendant's contention that the statements that he made at the police station were obtained in violation of his right to counsel is also without merit. Defendant was not in custody in connection with an unrelated pending charge in the State of Florida, and thus he had no derivative right to counsel with respect to the murder charge at issue here (see People v. Mantor, 96 A.D.3d 1645, 1646, 946 N.Y.S.2d 807 [4th Dept. 2012], lv denied 19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ; see generally People v. Lopez, 16 NY3d 375, 377, 923 N.Y.S.2d 377, 947 N.E.2d 1155 [2011] ). Additionally, the record supports the court's determination that defendant knowingly and intelligently waived his Miranda rights (see People v. Spoor, 148 A.D.3d 1795, 1796–1797, 50 N.Y.S.3d 232 [4th Dept. 2017], lv denied 29 N.Y.3d 1134, 64 N.Y.S.3d 684, 86 N.E.3d 576 [2017] ).
Defendant next contends that he was denied a fair trial by prosecutorial misconduct during voir dire and on summation. We note that most of the alleged improprieties are not preserved for our review (see People v. Machado, 144 A.D.3d 1633, 1635, 42 N.Y.S.3d 519 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012] ). In any event, we conclude that defendant's contention is without merit. The prosecutor's remarks during voir dire did not diminish the People's burden of proof (see generally People v. Williams, 43 A.D.3d 1336, 1337, 845 N.Y.S.2d 768 [4th Dept. 2007] ). Furthermore, the prosecutor's remarks on summation "were either a fair response to defense counsel's summation or fair comment on the evidence" ( People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249 [4th Dept. 2011], lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] [internal quotation marks omitted]; see People v. Goupil, 104 A.D.3d 1215, 1216, 960 N.Y.S.2d 814 [4th Dept. 2013], lv denied 21 N.Y.3d 943, 968 N.Y.S.2d 5, 990 N.E.2d 139 [2013] ). Inasmuch as we conclude that there was no prosecutorial misconduct, we reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to object to the alleged improprieties (see People v. Inman, 134 A.D.3d 1434, 1435, 21 N.Y.S.3d 775 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; Williams, 43 A.D.3d at 1337, 845 N.Y.S.2d 768 ).
We reject defendant's contention that the court abused its discretion in precluding certain evidence of third-party culpability (see generally People v. Powell, 27 N.Y.3d 523, 531, 35 N.Y.S.3d 675, 55 N.E.3d 435 [2016] ; People v. Schulz, 4 N.Y.3d 521, 529, 797 N.Y.S.2d 24, 829 N.E.2d 1192 [2005] ). The relevance of that evidence was outweighed by its potential for "undue prejudice, delay, and confusion" ( Powell, 27 N.Y.3d at 526, 35 N.Y.S.3d 675, 55 N.E.3d 435 ; see People v. Maynard, 143 A.D.3d 1249, 1251, 39 N.Y.S.3d 564 [4th Dept. 2016], lv denied 28 N.Y.3d 1148, 52 N.Y.S.3d 299, 74 N.E.3d 684 [2017] ). Finally, the sentence is not unduly harsh or severe.