PEOPLE v. MASTOWSKI (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[3] ).   Contrary to the contention of defendant, County Court did not err in denying his motion to suppress his statements to the Chief of Police of Clifton Springs, child protective caseworkers, and a close friend who is an Ontario County sheriff's deputy.   Defendant was not in custody when he made the statements (see generally People v. Johnson, 91 A.D.2d 327, 330, 458 N.Y.S.2d 775, affd. 61 N.Y.2d 932, 474 N.Y.S.2d 967, 463 N.E.2d 368;  People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, rearg. denied 26 N.Y.2d 845, 309 N.Y.S.2d 593, 258 N.E.2d 90, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89) and, in any event, defendant's right to counsel and privilege against self-incrimination were not implicated by the statements by defendant to child protective caseworkers (see People v. Whitmore, 12 A.D.3d 845, 847, 785 N.Y.S.2d 140, lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982;  People v. Greene, 306 A.D.2d 639, 640-641, 760 N.Y.S.2d 769, lv. denied 100 N.Y.2d 594, 766 N.Y.S.2d 170, 798 N.E.2d 354;  see generally People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065).

 Contrary to the further contention of defendant, he 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).   Defense counsel had a discernible strategy in advancing expert testimony that the victim's injuries could have been caused by recent vaccinations and, although that strategy was not successful, defendant was not thereby deprived of effective assistance of counsel (see People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Barnes, 305 A.D.2d 1095, 1095-1096, 759 N.Y.S.2d 717, lv. denied 100 N.Y.2d 592, 766 N.Y.S.2d 167, 798 N.E.2d 351).

 Defendant failed to preserve for our review his contention that the “depraved indifference” standard of Penal Law § 120.10(3) is unconstitutionally vague (see People v. McKeehan, 2 A.D.3d 1421, 1422, 770 N.Y.S.2d 246, lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205).   He also failed to preserve for our review the majority of his contentions concerning alleged prosecutorial misconduct (see CPL 470.05 [2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see People v. Brinson, 265 A.D.2d 879, 880, 697 N.Y.S.2d 221, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097).   With respect to the instances of alleged prosecutorial misconduct that are preserved for our review, we conclude that “the conduct of the prosecutor was not so egregious or prejudicial as to deny defendant his right to a fair trial” (People v. Dexter, 259 A.D.2d 952, 954, 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. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885).   The further contention of defendant that he was entitled to a circumstantial evidence charge is lacking in merit.   Because the statements that the court properly refused to suppress “could be interpreted as relevant admissions of guilt ․, there was both direct and circumstantial evidence,” and the court therefore was not required to give a circumstantial evidence charge (People v. Burgos, 195 A.D.2d 978, 979, 600 N.Y.S.2d 878, lv. denied 82 N.Y.2d 752, 603 N.Y.S.2d 993, 624 N.E.2d 179;  see People v. Licitra, 47 N.Y.2d 554, 558-559, 419 N.Y.S.2d 461, 393 N.E.2d 456, rearg. denied 53 N.Y.2d 938, 440 N.Y.S.2d 1028, 423 N.E.2d 415;   People v. Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806, 383 N.E.2d 108).

 Contrary to the further contentions of defendant, the conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.   Contrary to the contention of defendant, the fact that the sentence imposed after trial was greater than that offered pursuant to the pretrial plea offer does not render the sentence unduly harsh (see People v. Jurjens, 291 A.D.2d 839, 840, 737 N.Y.S.2d 891, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614;  People v. Maddox, 272 A.D.2d 884, 885, 708 N.Y.S.2d 769, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370).

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

MEMORANDUM: