PEOPLE v. DUNTON (2020)

Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at hearing;  Juan M. Merchan, J. at jury trial and sentencing), rendered February 17, 2017, as amended on February 28, 2017, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), assault in the second degree and reckless endangerment in the first degree, and sentencing him to an aggregate term of 25 years, unanimously affirmed.

The hearing court properly denied defendant's motion to suppress a remark he made during arrest processing, in which he expressed remorse for the injuries he inflicted upon one of the victims.  The brief interchange between defendant and a detective that preceded this remark was not the functional equivalent of interrogation (see People v. Rivers, 56 N.Y.2d 476, 479–480, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982] ).

The court also properly declined to suppress a lineup identification.  Our examination of the lineup photo reveals that, in all respects, defendant and the fillers were reasonably similar in appearance, and there was no substantial likelihood that defendant would be singled out (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).

Defendant failed to preserve his argument that police committed a constructive violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980] by coercing him to leave his apartment, and the court did not expressly rule on that specific argument (see CPL 470.05(2);  see generally People v. Bailey, 32 N.Y.3d 70, 78, 110 N.E.3d 489 [2018]; see e.g. People v. Wallace, 27 N.Y.3d 1037, 1038–1039, 53 N.E.3d 705 [2016] ).  As an alternative holding, we find that the evidence establishes that defendant was arrested after he voluntarily came out of his apartment (see People v. Garvin, 30 N.Y.3d 174, 180–183, 66 N.Y.S.3d 161, 88 N.E.3d 319 [2017], cert denied 586 U.S. ––––, 139 S Ct 57, 202 L.Ed.2d 20 [2018] ).

In any event, any errors in the suppression rulings at issue were harmless, whether viewed individually or collectively, in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).  Notably, defendant incriminated himself and expressed remorse in Facebook messages and posts.

Defendant's challenges to the prosecutor's summation are unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).