THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DEREK MCIVER DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ).   Contrary to the contention of defendant, County Court did not err in refusing to suppress his statement to a police investigator.   The testimony of defendant at the suppression hearing that the statement was coerced by correction officers and thus was not voluntary presented a credibility issue that the suppression court was entitled to resolve against defendant (see People v. Collins, 302 A.D.2d 958, lv denied 99 N.Y.2d 653).   Here, “[t]he testimony of the [investigator] ․ supports the court's determination that defendant's statement[ ][was] preceded by Miranda warnings and voluntarily made by defendant, without any promises, threats, or coercion on the part of [the correction officers]” (People v. Pennick, 2 AD3d 1427, 1428, lv denied 1 NY3d 632).

Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see People v. Livingston, 262 A.D.2d 786, 787-788, lv denied 94 N.Y.2d 881;  see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Defendant preserved for our review his contention that he was denied a fair trial based on prosecutorial misconduct on summation only with respect to two of the prosecutor's comments (see CPL 470.05[2] ).   In any event, that contention is without merit inasmuch as all of the prosecutor's allegedly improper comments were either a fair response to defense counsel's summation or fair comment on the evidence (see People v. Anderson, 52 AD3d 1320, 1321, lv. denied 11 NY3d 733).

Patricia L. Morgan

Clerk of the Court