PEOPLE v. MALAVE (2008)

 On appeal from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that the verdict is repugnant because he was found guilty of murder in the second degree but was acquitted of criminal possession of a weapon in the second and third degrees.   We reject that contention.   The counts of criminal possession of a weapon in the second and third degrees, as charged, contained an element not found in the murder count under which he was convicted as an accomplice, i.e., possession of a loaded gun (see People v. Nash, 273 A.D.2d 696, 699, 710 N.Y.S.2d 157;  see also People v. Mabry, 288 A.D.2d 326, 733 N.Y.S.2d 615, lv. denied 97 N.Y.2d 706, 739 N.Y.S.2d 107, 765 N.E.2d 310;  see generally People v. Tucker, 55 N.Y.2d 1, 6-7, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081).   Defendant failed to renew his challenge to the legal sufficiency of the evidence after he presented evidence and thus failed to preserve for our review his contention that the conviction is not supported by legally sufficient 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).   Further, defendant's post-trial motion pursuant to CPL 330.30 is insufficient to preserve defendant's contention for our review (see People v. Mills, 28 A.D.3d 1156, 1157, 813 N.Y.S.2d 592, lv. denied 7 N.Y.3d 903, 826 N.Y.S.2d 612, 860 N.E.2d 74;  see generally People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233, rearg. denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119, rearg. dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152).   In any event, that contention lacks merit, as does defendant's contention that the verdict is 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).

 Contrary to the further contention of defendant, County Court properly refused to conduct a Dunaway hearing.   The omnibus motion papers submitted by defendant contain only conclusory and speculative allegations and thus fail to raise an issue of fact with respect to the lawfulness of his arrest (see People v. Walker, 15 A.D.3d 902, 903, 789 N.Y.S.2d 780, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684;  People v. Huntley, 259 A.D.2d 843, 844-845, 687 N.Y.S.2d 747, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103;  see generally People v. Mendoza, 82 N.Y.2d 415, 426-429, 604 N.Y.S.2d 922, 624 N.E.2d 1017).   Finally, defendant failed to preserve for our review his further contention that he was denied due process on the ground that the police did not electronically record the interrogation resulting in his statement (see CPL 470.05[2] ) and, in any event, this Court has repeatedly determined that the failure to record a defendant's interrogation electronically does not constitute a denial of due process (see e.g. People v. Davis, 48 A.D.3d 1086, 1087-1088, 850 N.Y.S.2d 307;  People v. Vought, 45 A.D.3d 1247, 1248-1249, 844 N.Y.S.2d 815, lv. denied 10 N.Y.3d 817, 857 N.Y.S.2d 51, 886 N.E.2d 816;  People v. Williams, 39 A.D.3d 1200, 835 N.Y.S.2d 793, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892).

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

MEMORANDUM: