Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentDec 30, 2003
2 A.D.3d 367 (N.Y. App. Div. 2003)
2 A.D.3d 367768 N.Y.S.2d 823

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2597, 2597A.

Decided December 30, 2003.

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered December 3, 2001, convicting defendant, after a jury trial, of robbery in the second degree and grand larceny in the fourth degree (three counts), and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, and order, same court and Justice, entered on or about March 28, 2003, which denied defendant's motion to vacate the judgment, unanimously affirmed.

Frank Glaser, for Respondent.

Stephen R. DiPrima, for Defendant-Appellant.

Before: Tom, J.P., Mazzarelli, Ellerin, Lerner, Marlow, JJ.

The verdict was based on legally sufficient evidence. There is no basis for disturbing the jury's determinations concerning credibility ( see People v. Gaimari, 176 N.Y. 84, 94). The credible evidence established that defendant acted in concert with another person in forcibly taking the victim's property.

The court properly admitted defendant's statement made to the arresting officer. The record establishes that defendant moved to suppress this statement and chose to proceed to a Huntley hearing after failing to persuade the court that a preclusion ruling by another justice, made on the basis of the People's failure to comply with the notification requirements of CPL 710.30, was the law of the case. The court's denial of defendant's suppression motion after a Huntley hearing rendered any alleged deficiency in the CPL 710.30 notice irrelevant ( see People v. Kirkland, 89 N.Y.2d 903, 904).

At the Huntley hearing, the arresting officer testified that defendant made his statement spontaneously, before being arrested. A fair reading of the record fails to support defendant's assertions that at a prior proceeding the officer admitted that defendant's statement was the product of custodial interrogation, or that the prosecutor conceded this point. Accordingly, we reject defendant's claim that counsel was ineffective for failing to raise these matters at the Huntley hearing ( see People v. Hobot, 84 N.Y.2d 1021, 1024; see also Strickland v. Washington, 466 U.S. 668), or that the court's ruling denying suppression was obtained by fraud.

Defendant's CPL 440.10 motion based on a violation of his right to counsel was properly denied. The issue raised in the motion concerning defense counsel's status is unavailing ( People v. Kieser, 79 N.Y.2d 936, 937).

Since defendant's only objections to the prosecutor's summation were "all of a general nature" ( People v. Harris, 98 N.Y.2d 452, 492 n 18), his present challenges to the summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them ( see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884).