PEOPLE v. HALL (2008)

 On appeal from a judgment convicting him following a jury trial of, inter alia, murder in the second degree (Penal Law § 125.25[3] ), defendant contends that County Court erred in failing to grant summarily that part of his omnibus motion seeking to suppress his statements to the police.   Defendant raises that contention for the first time on appeal and thus has failed to preserve it for our review (see CPL 470.05 [2] ).   In any event, that contention lacks merit.   Although the People did not specifically refute the allegations of defendant in his motion papers, the People's “consent to any Court ordered Huntley hearing” is “an acknowledgment that a disputed factual issue exists, thereby precluding summary suppression” (People v. Williams, 19 Misc.3d 675, 679, 855 N.Y.S.2d 888;  see also People v. Weaver, 49 N.Y.2d 1012, 1013, 429 N.Y.S.2d 399, 406 N.E.2d 1335;  People v. Brooks, 225 A.D.2d 1096, 639 N.Y.S.2d 238).   Defendant further contends that his statements should have been suppressed because his family invoked his right to counsel on his behalf.   We reject that contention inasmuch as defendant was 17 years old at the time he was questioned by the police and thus, because he was legally an adult (see People v. Martin, 39 A.D.3d 1213, 833 N.Y.S.2d 805, lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757), his family could not invoke his right to counsel for him (see People v. Mitchell, 2 N.Y.3d 272, 275-276, 778 N.Y.S.2d 427, 810 N.E.2d 879).   Although the right to counsel may attach when an adult defendant's family has retained an attorney to represent the defendant and the police are aware that an attorney has been retained (see People v. Fuschino, 59 N.Y.2d 91, 100, 463 N.Y.S.2d 394, 450 N.E.2d 200), here the court concluded either that there was no communication to defendant informing him that an attorney had been retained for him, or that defendant had rejected that attorney.   The court based its conclusion on credibility determinations, and those determinations are afforded great weight (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. White, 300 A.D.2d 1149, 752 N.Y.S.2d 771, lv. denied 99 N.Y.2d 621, 757 N.Y.S.2d 832, 787 N.E.2d 1178).

 Although the record establishes that defendant was denied the opportunity to telephone his mother, that fact, alone, does not warrant suppression of defendant's statements without evidence that the police intentionally denied defendant access to his family in order to bar his exercise of the right to counsel and to obtain a confession or evidence of “a pattern of isolation and trickery designed to keep the defendant from obtaining counsel” (Fuschino, 59 N.Y.2d at 100, 463 N.Y.S.2d 394, 450 N.E.2d 200;  see People v. Salaam, 83 N.Y.2d 51, 55-56, 607 N.Y.S.2d 899, 629 N.E.2d 371;  Martin, 39 A.D.3d 1213, 833 N.Y.S.2d 805).   Furthermore, the request by defendant during the police interview to call his mother did “not give the police sufficient notice that the defendant [was] invoking his right to counsel” (Fuschino, 59 N.Y.2d at 100, 463 N.Y.S.2d 394, 450 N.E.2d 200), and his question whether he should have an attorney was not an unequivocal invocation of the right to counsel (see People v. Hicks, 69 N.Y.2d 969, 970, 516 N.Y.S.2d 648, 509 N.E.2d 343, rearg. denied 70 N.Y.2d 796, 522 N.Y.S.2d 113, 516 N.E.2d 1226;  People v. D'Eredita, 302 A.D.2d 925, 755 N.Y.S.2d 673, lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292).   Contrary to the additional contention of defendant with respect to the court's refusal to suppress his statements, the evidence establishes that he knowingly, voluntarily and intelligently waived his Miranda rights (see People v. Gerena, 49 A.D.3d 1204, 854 N.Y.S.2d 614).

 Contrary to the contention of defendant, the court properly admitted the testimony of a police officer that, during his interview of defendant, he informed defendant that defendant's mother had not corroborated defendant's alibi.   That testimony was not offered for the truth of the mother's statements but, rather, was offered to establish the effect of the mother's statements on defendant (see People v. Daniels, 265 A.D.2d 909, 910, 698 N.Y.S.2d 120, lv. denied 94 N.Y.2d 878, 705 N.Y.S.2d 10, 726 N.E.2d 487;  see also People v. Davis, 58 N.Y.2d 1102, 1103, 462 N.Y.S.2d 816, 449 N.E.2d 710), and “to explain why the defendant confessed to the police when he did” (People v. Perez, 9 A.D.3d 376, 377, 779 N.Y.S.2d 584, lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680).   Defendant's contention that the prosecutor improperly used that testimony in her summation is not preserved for our review (see People v. Johnson, 50 A.D.3d 1537, 856 N.Y.S.2d 781), and 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] ).

Defendant further contends that his constitutional right of confrontation was violated when the court permitted a police officer to testify on redirect examination concerning another suspect's alibi.   That contention is not preserved for our review because defendant did not object to that testimony (see People v. Bolling, 49 A.D.3d 1330, 853 N.Y.S.2d 803;  People v. Johnson, 40 A.D.3d 1011, 1012, 837 N.Y.S.2d 222, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897;  People v. Bryant, 27 A.D.3d 1124, 1125, 815 N.Y.S.2d 372, lv. denied 7 N.Y.3d 753, 819 N.Y.S.2d 878, 853 N.E.2d 249).   Defendant also failed to preserve for our review his contention that the testimony constituted inadmissible hearsay (see CPL 470.05[2];  see also People v. Mobley, 49 A.D.3d 1343, 853 N.Y.S.2d 812).   In any event, we conclude that defense counsel opened the door to the testimony (see generally People v. Massie, 2 N.Y.3d 179, 183-184, 777 N.Y.S.2d 794, 809 N.E.2d 1102;  People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324), and we note that defendant was afforded the opportunity to present his defense when the court permitted defendant to elicit testimony on the substance of that alibi on his re-cross-examination of the police officer (cf. People v. Gilmore, 66 N.Y.2d 863, 866-867, 498 N.Y.S.2d 752, 489 N.E.2d 721).

Defendant failed to preserve for our review his contentions that the prosecutor's cross-examination of his aunt exceeded the scope of her direct testimony (see People v. Miller, 108 A.D.2d 1053, 1057, 485 N.Y.S.2d 857, lv. denied 65 N.Y.2d 697, 491 N.Y.S.2d 1038, 481 N.E.2d 266), and that the cross-examination impermissibly suggested that his aunt had retained an attorney for him because he was guilty (see People v. Collins, 140 A.D.2d 186, 188, 528 N.Y.S.2d 41).   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] ).   Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation.   Defendant objected to only one comment on summation, and the court thereafter issued curative instructions with respect to that comment that the jury is presumed to have followed (see People v. Rivera, 281 A.D.2d 927, 928, 723 N.Y.S.2d 775, lv. denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92).   We decline to exercise our power to review defendant's unpreserved challenges to the summation as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Finally, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400);  that defendant was not denied a fair trial by the cumulative effect of any alleged errors (see generally People v. Dixon, 50 A.D.3d 1519, 856 N.Y.S.2d 383;  People v. Washington, 50 A.D.3d 1539, 856 N.Y.S.2d 783);  and that the sentence is not unduly harsh or severe.

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

MEMORANDUM: