PEOPLE v. FORTINO (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of murder in the second degree (Penal Law § 125.25[1], [3] ) and burglary in the second degree (§ 140.25[1][b], [c] ), and one count of burglary in the third degree (§ 140.20).   We reject defendant's contention that reversal is required based upon prosecutorial misconduct.  “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. Mastowski, 26 A.D.3d 744, 746, 808 N.Y.S.2d 871, lv. denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979, 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806, quoting 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 People v. Diaz, 52 A.D.3d 1230, 861 N.Y.S.2d 543, lv. denied 11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090).   Defendant failed to preserve for our review his contention with respect to the remaining instances of alleged prosecutorial misconduct during summation (see CPL 470.05[2];  Diaz, 52 A.D.3d at 1231, 861 N.Y.S.2d 543), and we decline to exercise our power to review those instances of alleged prosecutorial misconduct as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 Defendant also failed to preserve for our review his contention that County Court failed to conduct an adequate inquiry to determine if a juror was grossly unqualified to serve (see People v. Haynes, 35 A.D.3d 1212, 1213, 825 N.Y.S.2d 627, lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240).   In any event, that contention is without merit.   The record establishes that the court's inquiry revealed that the juror had only a “limited exchange” with another person and that the exchange did not render her grossly unqualified to serve (People v. Griffin, 41 A.D.3d 1285, 1286, 837 N.Y.S.2d 812, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897, 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024;  see CPL 270.35[1] ).   Defendant also failed to preserve for our review his contention that the court erred in failing to instruct the jury that a certain witness was an accomplice as a matter of law, thus requiring corroboration of her testimony (see People v. Argentina, 27 A.D.3d 569, 813 N.Y.S.2d 99, lv. denied 7 N.Y.3d 751, 819 N.Y.S.2d 877, 853 N.E.2d 248;  see also People v. Taylor, 57 A.D.3d 1518, 869 N.Y.S.2d 710).   In any event, the failure of the court to give that instruction is of no moment, inasmuch as the testimony of the witness was in fact amply corroborated (see People v. Smith-Merced, 50 A.D.3d 259, 854 N.Y.S.2d 386, lv. denied 10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412;  People v. Cody, 190 A.D.2d 684, 685, 593 N.Y.S.2d 528, lv. denied 81 N.Y.2d 969, 598 N.Y.S.2d 770, 615 N.E.2d 227).   Contrary to defendant's contention, the court properly refused to suppress a statement made by defendant after he invoked his right to counsel.   The record of the suppression hearing establishes that the statement was spontaneous and not in response to police interrogation or the functional equivalent thereof (see People v. Murphy, 51 A.D.3d 1057, 1057-1058, 856 N.Y.S.2d 713, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104;  People v. Maye, 18 A.D.3d 1026, 1028, 795 N.Y.S.2d 387, lv. denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160;  People v. Folger, 292 A.D.2d 841, 740 N.Y.S.2d 740, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229).   Finally, we reject the further contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: