PEOPLE v. PROSPECT (2008)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered August 24, 2006, convicting him of bribe receiving in the second degree and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

The defendant's contention that the prosecutor's summation deprived him of a fair trial is unpreserved for appellate review (see People v. Tonge, 93 N.Y.2d 838, 839, 688 N.Y.S.2d 88, 710 N.E.2d 653).   In any event, the prosecutor's single improper comment was not so flagrant as to deprive the defendant of a fair trial (see People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95).

 The evidence adduced at trial regarding the voluntariness of the defendant's statements to the police was insufficient to raise a factual dispute with regard to that issue, and therefore, the trial court properly refused to charge the jury on it (see CPL 710.70[3];  People v. Cefaro, 23 N.Y.2d 283, 286, 296 N.Y.S.2d 345, 244 N.E.2d 42;  People v. Powers, 231 A.D.2d 744, 648 N.Y.S.2d 119;  People v. Miner, 213 A.D.2d 429, 624 N.Y.S.2d 883).

 The Supreme Court's jury charge regarding bribe receiving in the second degree was proper, as it was in accordance with the language contained in the pattern jury instructions (see People v. Mateo, 2 N.Y.3d 383, 416 n. 20, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Lubrano, 43 A.D.3d 829, 844 N.Y.S.2d 319;  People v. McDonald, 283 A.D.2d 592, 593, 724 N.Y.S.2d 899;  People v. Dering, 140 A.D.2d 538, 539, 528 N.Y.S.2d 622).   The court also provided a meaningful response to a note from the jury (see CPL 310.30;   People v. Malloy, 55 N.Y.2d 296, 449 N.Y.S.2d 168, 434 N.E.2d 237).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contentions raised in points 8, 10, 14, and 17 of his brief are unpreserved for appellate review, and his remaining contentions are without merit.