THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AARON JACKSON ALSO KNOWN AS ARRON JACKSON DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of attempted robbery in the first degree and attempted robbery in the second degree, and dismissing counts four through six of the indictment, and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [3] ), two counts of attempted robbery in the first degree (§§ 110.00, 160.15 [1], [2] ), and attempted robbery in the second degree (§§ 110.00, 160.10 [1] ).  Defendant was sentenced to concurrent terms of incarceration, the longest of which is a term of 25 years to life, to be served consecutively to a like term that defendant was serving pursuant to a previous conviction for the attempted murder of a police officer (People v. Jackson, 120 AD3d 1601, lv denied 26 NY3d 1040).

We conclude that Supreme Court (Brunetti, A.J.) properly denied defendant's motion to suppress his October 28, 2011 statements to the police as taken in violation of his Miranda rights and his state constitutional right to counsel.  Contrary to defendant's contention, his statements to police on that date were not the product of a custodial interrogation requiring the administration of Miranda warnings at the outset of the interview (see People v. Passino, 53 AD3d 204, 205–206, affd 12 NY3d 748;  see generally People v. Alls, 83 N.Y.2d 94, 100, cert denied 511 U.S. 1090).  Miranda warnings are required prior to the questioning of an inmate in a prison setting only “where ‘the circumstances of the detention and interrogation ․ entail added constraint that would lead a prison inmate reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility’ “ (People v. Hadfield, 119 AD3d 1224, 1225, lv denied 24 NY3d 1002, quoting Alls, 83 N.Y.2d at 100;  see Passino, 53 AD3d at 205–206).  Moreover, defendant “failed to meet his ultimate burden by presenting evidence establishing that he was in fact represented by counsel at the time of interrogation, as defendant contended” (People v. Hilts, 19 AD3d 1178, 1179;  see People v. Holloway, 97 AD3d 1099, 1100, lv denied 19 NY3d 1026;  see generally People v. Rosa, 65 N.Y.2d 380, 388).  Further, the record demonstrates that defendant's claimed invocation of his right to counsel did not relate to the matter under investigation and did not occur while he was in police custody (see People v. Vila, 208 A.D.2d 781, 782, lv. denied 85 N.Y.2d 867;  see also People v. Fridman, 71 N.Y.2d 845, 846;  see generally People v. Grice, 100 N.Y.2d 318, 321;  People v. West, 81 N.Y.2d 370, 373–374).

We conclude that defendant was not deprived of a fair trial by alleged prosecutorial misconduct during the opening statement and on summation.  The remarks in question constituted fair comment on the evidence (see People v. Rivera, 133 AD3d 1255, 1256;  People v. Lofton, 132 AD3d 1242, 1243) as well as fair response to the summation of defense counsel (see People v. Halm, 81 N.Y.2d 819, 821;  People v. Walker, 117 AD3d 1441, 1442, lv denied 23 NY3d 1044), and those remarks did not sidetrack the jurors from their ultimate responsibility of determining the facts essential to defendant's guilt or innocence (see generally People v. Calabria, 94 N.Y.2d 519, 523;  People v. Alicea, 37 N.Y.2d 601, 605).

We conclude that the evidence is legally sufficient, in terms of the requisite corroboration of defendant's statement (see CPL 60.50), to support defendant's conviction of felony murder (see People v. Harper, 132 AD3d 1230, 1231;  People v. Hamilton, 121 A.D.2d 395, 396;  see also People v. Murray, 40 N.Y.2d 327, 331, rearg. denied 40 N.Y.2d 1080, cert denied 430 U.S. 948).  We note that a conviction of felony murder, although requiring corroboration of defendant's confession with respect to the homicide, does not require corroboration of the confession with respect to the underlying predicate felony (see Harper, 132 AD3d at 1231).  On the other hand, we conclude that the evidence, more particularly the corroboration of defendant's confession, is legally insufficient to support the convictions of attempted robbery in the first and second degrees under counts four through six of the indictment (see id.;  People v. Velez, 122 A.D.2d 178, 178–179), and we modify the judgment accordingly.

We have considered defendant's remaining contentions, including the challenge to the severity of the sentence, and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court