PEOPLE v. SHAW (2009)

Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[2] ) and endangering the welfare of a child (§ 260.10[1] ). Contrary to the contention of defendant, his confession was not rendered involuntary by undue “psychological pressure,” and County Court thus properly refused to suppress the confession. In support of his contention, defendant relies primarily on his own testimony at the Huntley hearing. The court's determination to discredit that testimony 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 it (see People v. Thompson, 59 A.D.3d 1115, 1116, 873 N.Y.S.2d 834, lv denied 12 N.Y.3d 852, 860, 881 N.Y.S.2d 664, 909 N.E.2d 587). We reject defendant's further contention that certain inconsistencies in the testimony of the police witnesses at the suppression hearing demonstrate that such testimony was “tailored to meet constitutional objections” and thus that the court erred in crediting that testimony. In any event, we conclude that those minor inconsistences do not undermine the court's credibility determination in favor of those witnesses (see generally People v. Childres, 60 A.D.3d 1278, 1279, 875 N.Y.S.2d 662). We also reject the contention of defendant that he was advised of his Miranda rights in a manner that did not enable him to understand those rights. Upon our review of the transcript of the suppression hearing, we conclude that “[t]he People met ‘their initial burden of establishing the legality of the police conduct and defendant's waiver of rights,’ and defendant failed to establish that he did not waive those rights, or that the waiver was not knowing, voluntary and intelligent” (People v. Grady, 6 A.D.3d 1149, 1150, 775 N.Y.S.2d 662, lv denied 3 N.Y.3d 641, 782 N.Y.S.2d 412, 816 N.E.2d 202; see People v. Caballero, 23 A.D.3d 1031, 1032, 803 N.Y.S.2d 849, lv denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975).

Contrary to the further contention of defendant, the court properly denied his request to dismiss a sworn juror as “grossly unqualified to serve in the case” (CPL 270.35[1] ). Although the juror initially expressed some concern over the defense of extreme emotional disturbance, he ultimately assured the court in unequivocal terms that he would be fair and impartial and would follow the court's instructions (see generally People v. Buford, 69 N.Y.2d 290, 297-299, 514 N.Y.S.2d 191, 506 N.E.2d 901; People v. Buchholz, 23 A.D.3d 1093, 1094, 805 N.Y.S.2d 763, lv denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975). Defendant failed to preserve for our review the majority of his contentions concerning the alleged instances of prosecutorial misconduct (see CPL 470.05[2] ), and we conclude that, in any event, “[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial” (People v. Cox, 21 A.D.3d 1361, 1364, 802 N.Y.S.2d 813, lv denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 [internal quotation marks omitted] ). We have considered defendant's remaining contention and conclude that it is without merit.

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

MEMORANDUM: