PEOPLE v. NEWTON (2009)

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), reckless endangerment in the second degree (§ 120.20), and criminal possession of a weapon in the third degree (§ 265.02[1] ).   We reject the contention of defendant that he was denied a fair trial by the prosecutor's comments during summation with respect to his postarrest silence.   Defendant waived his Miranda rights and chose to speak to the police about the charges, and the prosecutor thus was entitled to impeach his credibility at trial with respect to omissions from his statements to the police (see generally People v. Savage, 50 N.Y.2d 673, 678-682, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475;  People v. Thomas, 287 A.D.2d 326, 731 N.Y.S.2d 32, lv. denied 97 N.Y.2d 688, 738 N.Y.S.2d 304, 764 N.E.2d 408;  People v. Mosby, 239 A.D.2d 938, 659 N.Y.S.2d 610, lv. denied 90 N.Y.2d 942, 664 N.Y.S.2d 760, 687 N.E.2d 657).   Contrary to defendant's further contention, County Court properly refused to suppress physical evidence based on its determination that the officers had probable cause to arrest defendant pursuant to the fellow officer rule (see People v. Massey, 49 A.D.3d 462, 856 N.Y.S.2d 44, lv. denied 10 N.Y.3d 866, 860 N.Y.S.2d 493, 890 N.E.2d 256;  People v. Whitehead, 23 A.D.3d 695, 696, 803 N.Y.S.2d 298, lv. denied 6 N.Y.3d 840, 814 N.Y.S.2d 88, 847 N.E.2d 385;  see generally People v. Ketcham, 93 N.Y.2d 416, 419-420, 690 N.Y.S.2d 874, 712 N.E.2d 1238).   Finally, the court properly denied as untimely the CPL 330.30 motion of defendant seeking, inter alia, to renew his pretrial request for the suppression of physical evidence (see CPL 710.40[4];  People v. Taylor, 36 A.D.3d 562, 562-563, 828 N.Y.S.2d 392, lv. denied 8 N.Y.3d 991, 838 N.Y.S.2d 494, 869 N.E.2d 670).   In any event, there was no basis for the court to reconsider its suppression ruling because any discrepancy between the testimony at trial and the suppression hearing was insignificant and “could not have affected the court's suppression ruling” (Taylor, 36 A.D.3d at 563, 828 N.Y.S.2d 392).

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

MEMORANDUM: