PEOPLE v. GLADDING (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the first degree (Penal Law § 125.27[1][a][vii];  [b] ) and kidnapping in the first degree (§ 135.25 [3] ).   We reject defendant's contention that the indictment was insufficient because the victim's death was improperly “double counted” as an element of both murder in the first degree and kidnapping in the first degree.  “It is of no moment that a factual circumstance other than defendant's intent-in this case, the victim's death-is an element of both the murder and the predicate felony” (People v. Lucas, 11 N.Y.3d 218, 222, 868 N.Y.S.2d 570, 897 N.E.2d 1052).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that 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).

 Defendant further contends that County Court erred in refusing to suppress his statements to the police made while he was attempting to locate the victim's body.   According to defendant, his arraignment was unreasonably delayed, depriving him of his right to counsel and rendering his statements involuntary.   We reject that contention.   A delay in an arraignment does not automatically cause the right to counsel to attach but, instead, “such a delay bears on the voluntariness of the confession, and is a factor to be considered in that regard” (People v. Ramos, 99 N.Y.2d 27, 34, 750 N.Y.S.2d 821, 780 N.E.2d 506).   As this Court has noted, “[a]n undue delay in an arraignment alone does not render a confession involuntary” (People v. Prude, 2 A.D.3d 1318, 1319, 769 N.Y.S.2d 680, lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207).   Here, we conclude that the record of the suppression hearing supports the court's determination that the statements made by defendant were voluntary.

 We reject the further contention of defendant that the court erred in denying his challenge for cause to a prospective juror.   Although the prospective juror initially expressed “a state of mind that [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20[1][b] ), she ultimately stated unequivocally that she could follow the law and be fair and impartial (see People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. McLaurin, 27 A.D.3d 1117, 1118, 815 N.Y.S.2d 369, lv. denied 7 N.Y.3d 759, 819 N.Y.S.2d 885, 853 N.E.2d 256).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: