PEOPLE v. ALEXANDER (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [3] ) and attempted robbery in the first degree (§§ 110.00, 160.15 [2] ).  Defendant contends that his written statement to the police was involuntary and that County Court therefore erred in refusing to suppress it.  We reject that contention.  “The voluntariness of a confession is to be determined by examining the totality of the circumstances surrounding the confession” (People v. Coggins, 234 A.D.2d 469, 470, 651 N.Y.S.2d 572;  see People v. Scott, 212 A.D.2d 1047, 623 N.Y.S.2d 44, affd. 86 N.Y.2d 864, 635 N.Y.S.2d 167, 658 N.E.2d 1040), and the length of the interrogation, without more, does not render a defendant's statement involuntary (see People v. Towndrow, 236 A.D.2d 821, 822, 654 N.Y.S.2d 69, lv. denied 89 N.Y.2d 1016, 658 N.Y.S.2d 254, 680 N.E.2d 628).  Although the interrogation herein spanned approximately nine hours, the record establishes that there were several breaks in the interrogation during which defendant was left alone, and there is no indication that he sought to end the interrogation, or that he requested food or water, or to use the bathroom (see People v. Whitten, 183 A.D.2d 865, 584 N.Y.S.2d 106, lv. denied 81 N.Y.2d 849, 595 N.Y.S.2d 749, 611 N.E.2d 788).  The record further establishes that defendant was advised of his Miranda rights a second time and signed a written waiver immediately before signing the statement.

 Also contrary to the contention of defendant, his statement was not rendered involuntary based on alleged police deception.  According to defendant, the police misled him by informing him that he was the least culpable of the suspects and that he would be released if he cooperated but, according to the police, they did not inform defendant that he would be released.  Even assuming, arguendo, that the police misled defendant, we conclude that such deception “did not create ‘a substantial risk that the defendant might falsely incriminate himself’ ” (People v. Hamelinck, 222 A.D.2d 1024, 1024, 635 N.Y.S.2d 916, lv. denied 87 N.Y.2d 921, 641 N.Y.S.2d 603, 664 N.E.2d 514), nor can it be said that the alleged deception was “ ‘so fundamentally unfair as to deny [defendant] due process' ” (People v. Brown, 39 A.D.3d 886, 887, 835 N.Y.S.2d 451, lv. denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752, quoting People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188).  We further conclude that the determination of the court to credit the testimony of the police officers that defendant did not invoke his right to counsel before signing the statement is entitled to deference (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380), and we see no basis to disturb that determination (see People v. Twillie, 28 A.D.3d 1236, 1237, 813 N.Y.S.2d 626, lv. denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1290;  People v. Price, 309 A.D.2d 1259, 765 N.Y.S.2d 563, lv. denied 1 N.Y.3d 578, 775 N.Y.S.2d 794, 807 N.E.2d 907).

 Defendant failed to preserve for our review his contention that the conviction of attempted robbery and felony murder is not supported by legally sufficient evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Wright, 43 A.D.3d 1359, 1360, 843 N.Y.S.2d 482, lv. denied 9 N.Y.3d 1011, 850 N.Y.S.2d 399, 880 N.E.2d 885;  People v. LaValley, 41 A.D.3d 1153, 1154, 837 N.Y.S.2d 796, lv. denied 9 N.Y.3d 877, 842 N.Y.S.2d 789, 874 N.E.2d 756).  In any event, that contention lacks merit.  Contrary to defendant's contention, the People were not required to present evidence pursuant to CPL 60.50 corroborating defendant's statement concerning the underlying felony for the felony murder, i.e., the attempted robbery.  “Without the underlying felony ․, the defendant could still have committed a lesser homicide offense,” and thus the rationale for requiring corroboration, which is to avoid the danger that a defendant confessed to a crime when no crime has actually been committed, no longer exists (People v. Chico, 90 N.Y.2d 585, 590, 665 N.Y.S.2d 5, 687 N.E.2d 1288;  see generally People v. Davis, 46 N.Y.2d 780, 781, 413 N.Y.S.2d 911, 386 N.E.2d 823).  Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), including defendant's written statement, eyewitness testimony, and the testimony of the firearms expert, we conclude that the evidence is legally sufficient to support the conviction of attempted robbery and felony murder (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We reject the contention of defendant that the verdict is against the weight of the evidence (see generally id.).  “Issues with respect to ‘the credibility of prosecution witnesses concerning the voluntariness of the confession were for the jury to decide, and there is no basis in the record to disturb the jury's resolution of those issues' ” (People v. Warney, 299 A.D.2d 956, 957, 750 N.Y.S.2d 731, lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289;  see People v. Sanchez, 267 A.D.2d 960, 700 N.Y.S.2d 922, lv. denied 94 N.Y.2d 906, 707 N.Y.S.2d 391, 728 N.E.2d 990).  Further, although there were inconsistencies between the written statement of defendant and his testimony at trial, we cannot conclude that the jury failed to give the evidence the weight it should be accorded in finding that defendant acted as an accomplice (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Diaz, 39 A.D.3d 1244, 1245–1246, 834 N.Y.S.2d 418, lv. denied 9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882;  People v. Chapman, 30 A.D.3d 1000, 1001, 816 N.Y.S.2d 256, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802).

 Defendant further contends that he was deprived of a fair trial based on alleged misconduct by the prosecutor in cross-examining defendant's witnesses.  Defendant's contention with respect to three of the allegedly improper questions is not preserved for our review inasmuch as defendant made only general objections to those questions (see generally People v. Pierre, 300 A.D.2d 1070, 752 N.Y.S.2d 491, lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286), and we decline to exercise our power to review defendant's contention concerning those three questions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).  We conclude that the court properly denied defendant's request for a mistrial based on two other allegedly improper questions.  The court sustained defendant's objections to those questions and gave curative instructions with respect to them, and “the jury is presumed to have followed” those curative instructions (People v. Duvall, 260 A.D.2d 183, 184, 688 N.Y.S.2d 142, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510;  see also People v. Davis, 58 N.Y.2d 1102, 1103–1104, 462 N.Y.S.2d 816, 449 N.E.2d 710).  The remaining allegedly improper questions concern the prosecutor's cross-examination of defendant, and “[i]t does not appear on the record before us that the conduct of the prosecutor during [that] cross-examination ․ was intended merely to harass, annoy or humiliate defendant ․ Rather, it appears that the cross-examination was intended to place defendant in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise [the facts]” (People v. Brent–Pridgen, 48 A.D.3d 1054, 1055, 850 N.Y.S.2d 760 [internal quotation marks omitted] ).  Defendant failed to preserve for our review his further contention that he was deprived of a fair trial by prosecutorial misconduct during summation (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800).  In any event, “that ․ contention is without merit inasmuch as the prosecutor's comments were either a fair response to defense counsel's summation or were fair comment on the evidence” (People v. Green, 48 A.D.3d 1245, 1245–1246, 854 N.Y.S.2d 920;  see People v. Williams, 43 A.D.3d 1336, 845 N.Y.S.2d 768;  see generally People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281).

 We reject the contention of defendant that he was penalized for exercising his right to trial.  “ ‘[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial’ ” (People v. Chappelle, 14 A.D.3d 728, 729, 787 N.Y.S.2d 501, lv. denied 5 N.Y.3d 786, 801 N.Y.S.2d 807, 835 N.E.2d 667;  see People v. Griffin, 48 A.D.3d 1233, 1237, 851 N.Y.S.2d 808;  People v. Taplin, 1 A.D.3d 1044, 1046, 767 N.Y.S.2d 541, lv. denied 1 N.Y.3d 635, 777 N.Y.S.2d 33, 808 N.E.2d 1292).  Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: