PEOPLE v. CARTER (2007)

 On appeal from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[4] ) and reckless endangerment in the first degree (§ 120.25), defendant contends that Supreme Court erred in refusing to suppress physical evidence as well as various statements made by defendant to the police.   Contrary to the contention of defendant, there was probable cause to support his arrest inasmuch as the People established that the informant was reliable and had a sufficient basis of knowledge (see People v. Ketcham, 93 N.Y.2d 416, 420, 690 N.Y.S.2d 874, 712 N.E.2d 1238;  see also People v. Johnson, 7 A.D.3d 732, 732-733, 777 N.Y.S.2d 190;  People v. Daily, 287 A.D.2d 293, 731 N.Y.S.2d 357, lv. denied 97 N.Y.2d 680, 738 N.Y.S.2d 295, 764 N.E.2d 399;  People v. Sturiale, 262 A.D.2d 1003, 1004, 693 N.Y.S.2d 374, lv. denied 94 N.Y.2d 830, 702 N.Y.S.2d 600, 724 N.E.2d 392).   Therefore, the physical evidence seized from defendant's car and defendant's postarrest statements need not be suppressed as fruit of the poisonous tree.   The contentions of defendant that his consent to search his vehicle was coerced and that the search exceeded the authorized scope of the consent are raised for the first time on appeal and thus are not preserved for our review (see People v. Reed, 34 A.D.3d 1364, 825 N.Y.S.2d 600).   In any event, those contentions lack merit.

 By failing to object to the alleged inconsistency of the verdict before the jury was discharged, defendant failed to preserve for our review his contention that the verdict is inconsistent (see People v. Carter, 21 A.D.3d 1295, 1296, 801 N.Y.S.2d 464, affd. 7 N.Y.3d 875, 826 N.Y.S.2d 588, 860 N.E.2d 50;  People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Crisler, 278 A.D.2d 887, 888, 718 N.Y.S.2d 507, lv. denied 96 N.Y.2d 861, 730 N.Y.S.2d 35, 754 N.E.2d 1118;  People v. Roth, 256 A.D.2d 1206, 1207, 683 N.Y.S.2d 358).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  cf. People v. Sanchez, 128 A.D.2d 377, 378-380, 512 N.Y.S.2d 389).

Defendant likewise failed to preserve for our review his contentions that he was denied a fair trial by prosecutorial misconduct on summation (see People v. Montalvo, 34 A.D.3d 600, 601, 825 N.Y.S.2d 101;  People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244, lv. denied 98 N.Y.2d 650, 745 N.Y.S.2d 509, 772 N.E.2d 612), and that the court erred in instructing the jury on reasonable doubt (see People v. Giles, 20 A.D.3d 863, 864, 798 N.Y.S.2d 635, lv. denied 5 N.Y.3d 806, 803 N.Y.S.2d 35, 836 N.E.2d 1158;  People v. Rodriguez, 2 A.D.3d 1359, 1360, 769 N.Y.S.2d 423, lv. denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291).   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] ).

 Contrary to defendant's further contention, the evidence is legally sufficient to support the conviction.   Even assuming, arguendo, that one of the witnesses was an accomplice, we conclude that there is sufficient corroborative evidence in the record to support the conviction (see People v. Dexter, 259 A.D.2d 952, 953, 688 N.Y.S.2d 289, affd. 94 N.Y.2d 847, 703 N.Y.S.2d 64, 724 N.E.2d 759;  see generally People v. Breland, 83 N.Y.2d 286, 293, 609 N.Y.S.2d 571, 631 N.E.2d 577).   Further, the evidence is legally sufficient to establish that defendant acted with a depraved indifference to human life (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the verdict is not against the weight of the evidence (see generally id.), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: