PEOPLE v. PINKNEY (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered May 12, 2004, convicting him of murder in the second degree and attempted murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of his omnibus motion which was to suppress oral and written statements made to the police.

ORDERED that the judgment is affirmed.

 Contrary to the contention raised by the defendant in Point III of his supplemental pro se brief, the hearing court did not err in denying that branch of his omnibus motion which was to suppress his oral and written statements to the police, since the credible evidence established that the defendant merely inquired as to whether he should retain or consult with a lawyer (see People v. Hicks, 69 N.Y.2d 969, 970, 516 N.Y.S.2d 648, 509 N.E.2d 343;  People v. Jackson, 43 A.D.3d 1181, 842 N.Y.S.2d 97, lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880;  People v. Hurd, 279 A.D.2d 892, 893, 719 N.Y.S.2d 752;  People v. Thompson, 271 A.D.2d 555, 555, 706 N.Y.S.2d 136;   People v. Diaz, 161 A.D.2d 789, 789-790, 556 N.Y.S.2d 128;  People v. Banks, 135 A.D.2d 643, 645-646, 522 N.Y.S.2d 574;  People v. Ward, 134 A.D.2d 544, 544-545, 521 N.Y.S.2d 307).   Even crediting the defendant's statement that he requested a lawyer, the uncontroverted testimony established that the defendant thereafter “clearly and unambiguously negated those very words” (People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155).   As the defendant did not unequivocally inform the police that he wanted the assistance of counsel, his statements were admissible in evidence (see People v. Twillie, 28 A.D.3d 1236, 813 N.Y.S.2d 626;  People v. Powell, 304 A.D.2d 410, 411, 757 N.Y.S.2d 297;  People v. Wade, 296 A.D.2d 720, 745 N.Y.S.2d 306;  People v. Cotton, 277 A.D.2d 461, 462, 715 N.Y.S.2d 763;  People v. Sanchez, 117 A.D.2d 685, 686, 498 N.Y.S.2d 426).

The police had probable cause to effectuate the defendant's arrest (see People v. Walton, 309 A.D.2d 956, 957, 766 N.Y.S.2d 93;  People v. Soberanis, 289 A.D.2d 343, 344, 734 N.Y.S.2d 70;  People v. Nixon, 240 A.D.2d 764, 660 N.Y.S.2d 1006;  People v. Glia, 226 A.D.2d 66, 75, 651 N.Y.S.2d 967;  People v. Billian, 157 A.D.2d 841, 550 N.Y.S.2d 424).   The defendant's contention to the contrary, raised in Point II of his supplemental pro se brief, is thus without merit.

 The defendant failed to preserve for appellate review his contention, raised both by his appellate counsel and in Point I of his supplemental pro se brief, that he was denied a fair trial as a result of prosecutorial misconduct.   With the exception of a general objection on cross-examination and one objection during summation, the defendant raised no objection to the prosecutor's challenged comments and failed to move for a mistrial (see CPL 470.05[2];  People v. Williams, 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588).   In any event, “the prosecutor's questioning of the defendant on cross-examination and suggestion during summation that he tailored his testimony after hearing the testimony of the prosecution's witnesses was not unduly prejudicial” (People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305;  see Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47;  People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127;  People v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334;  People v. Allien, 302 A.D.2d 468, 753 N.Y.S.2d 738;  People v. McNill, 294 A.D.2d 307, 308, 742 N.Y.S.2d 539;  People v. King, 293 A.D.2d 815, 816-817, 740 N.Y.S.2d 500;  People v. Lowery, 281 A.D.2d 491, 721 N.Y.S.2d 775;  People v. Cobo, 245 A.D.2d 72, 73, 666 N.Y.S.2d 123).   Also, the prosecutor's comments respecting the proffered defense and the complainant's credibility were fair response to the defense counsel's argument on summation (see People v. Hughes, 280 A.D.2d 694, 696, 720 N.Y.S.2d 586;  People v. Elliot, 216 A.D.2d 576, 577, 628 N.Y.S.2d 761;  People v. Lindsay, 123 A.D.2d 719, 720, 507 N.Y.S.2d 82).   The prosecutor did not, in his summation comments, usurp the court's function of instructing the jury on the law (see People v. France, 265 A.D.2d 424, 697 N.Y.S.2d 628;  People v. Moran, 175 A.D.2d 295, 573 N.Y.S.2d 919;  People v. Johnstone, 131 A.D.2d 782, 517 N.Y.S.2d 69).

Under the circumstances of this case, the imposition of consecutive sentences was not excessive (see People v. Mileto, 290 A.D.2d 877, 880, 737 N.Y.S.2d 170;  People v. Williams, 226 A.D.2d 750, 752, 641 N.Y.S.2d 856).