PEOPLE v. BENNETT (1997)

Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25[3] ), attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[1] ), criminal possession of a weapon in the second degree (Penal Law § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02[4] ).   Defendant failed to preserve for our review his contentions that County Court erred in providing supplementary instructions in response to questions from the jury (see, CPL § 470.05[2];  People v. Guerrero–Rivera, 236 A.D.2d 837, 654 N.Y.S.2d 224, lv. denied 89 N.Y.2d 1093, 660 N.Y.S.2d 387, 682 N.E.2d 988);  that the evidence is insufficient to support his conviction of criminal possession of a weapon in the second degree (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919);  and that the search warrant application was not supported by probable cause (see, People v. Jamison, 219 A.D.2d 853, 632 N.Y.S.2d 353, lv. denied 87 N.Y.2d 974, 642 N.Y.S.2d 203, 664 N.E.2d 1266, 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352).   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 contends that his statements to the police should have been suppressed because the statements and his waiver of the right to counsel were made in the absence of counsel.   That contention lacks merit.   Defendant failed to establish that he was represented by counsel at the time of his waiver and statements, i.e., that his attorney had “entered the proceedings” (People v. Steward, 217 A.D.2d 919, 630 N.Y.S.2d 187, affd. 88 N.Y.2d 496, 646 N.Y.S.2d 974, 670 N.E.2d 214, rearg. denied 88 N.Y.2d 1018, 649 N.Y.S.2d 384, 672 N.E.2d 610).  “An attorney is deemed to have entered the proceedings once the police know or are apprised of the fact that the defendant is represented by counsel” (People v. Modeste, 159 Misc.2d 250, 258, 603 N.Y.S.2d 955;  see also, People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 239 N.E.2d 537;  People v. Kocik, 63 A.D.2d 230, 242, 407 N.Y.S.2d 929).   There is no proof that the police or the District Attorney had been apprised that defendant was represented by counsel.   Defendant contends for the first time on appeal that the statements should have been suppressed because he was unlawfully detained at the time the statements were given and that his statements were coerced.   By failing to raise those contentions in his suppression motion, defendant failed to preserve them for our review (see, People v. Owusu, 234 A.D.2d 893, 652 N.Y.S.2d 914, lv. denied 89 N.Y.2d 1039, 659 N.Y.S.2d 870, 681 N.E.2d 1317;  People v. Jamison, supra ).   In any event, those contentions lack merit.

 The court did not err in allowing the People to elicit proof of uncharged crimes on their direct case (see, People v. Carter, 77 N.Y.2d 95, 107, 564 N.Y.S.2d 992, 566 N.E.2d 119, cert. denied 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662;  People v. Wright, 226 A.D.2d 407, 640 N.Y.S.2d 778, lv. denied 89 N.Y.2d 932, 654 N.Y.S.2d 734, 677 N.E.2d 306;  People v. Mosely, 187 A.D.2d 374, 589 N.Y.S.2d 486) or in refusing defendant's request to submit the accomplice status of a prosecution witness to the jury as an issue of fact (see, People v. Parham, 147 A.D.2d 944, 945, 537 N.Y.S.2d 384, lv. denied 73 N.Y.2d 1019, 541 N.Y.S.2d 774, 539 N.E.2d 602).   Further, we reject the contention that the court improperly exercised its discretion in curtailing the cross-examination of a prosecution witness or in allowing the People to recall a witness.

 There is no merit to the contention that defendant was denied his right to be present during a conference in the court's chambers concerning the scope of cross-examination of a prosecution witness.   Because that proceeding involved a question of procedure, it “neither implicated defendant's peculiar factual knowledge nor otherwise presented the potential for his meaningful participation” (People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293;  see, People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070).   In any event, the matter was reargued in open court in defendant's presence, and defendant had the opportunity for meaningful participation in that argument (see, People v. Starks, 216 A.D.2d 120, 121, 629 N.Y.S.2d 749, affd. 88 N.Y.2d 18, 29, 643 N.Y.S.2d 10, 665 N.E.2d 1050;  People v. Lynch, 216 A.D.2d 929, 629 N.Y.S.2d 136, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264).

 The court properly denied defendant's motion to dismiss the indictment on the ground that perjured testimony impaired the integrity of the Grand Jury proceedings.   Defendant failed to establish that the Grand Jury testimony of a prosecution witness was perjured or that the prosecutor knowingly elicited perjured testimony before the Grand Jury (see, People v. Mariani, 203 A.D.2d 717, 719, 610 N.Y.S.2d 967, lv. denied 84 N.Y.2d 869, 618 N.Y.S.2d 15, 642 N.E.2d 334;  People v. DeFreece, 183 A.D.2d 842, 584 N.Y.S.2d 91).

 We reject the contention that defendant was deprived of a fair trial by prosecutorial misconduct on summation.   Although we agree with defendant that the prosecutor improperly commented during summation on a matter outside the evidence (see, People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564) and improperly denigrated the defense, those isolated comments were not so egregious as to deprive defendant of a fair trial (cf., People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307).

Finally, the contention that defendant was denied effective assistance of counsel lacks merit (see, People v. Satterfield, 66 N.Y.2d 796, 798–799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Judgment unanimously affirmed.

MEMORANDUM: