PEOPLE v. ESCAMILLA (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered September 2, 2015, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree, gang assault in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his waiver of Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) was rendered invalid by a police officer's pre-Miranda questioning of the defendant regarding whether he knew why he had been brought to the station house, and the officer's pre-Miranda statement to the defendant that the police wished to speak to the defendant regarding an incident that occurred at a particular location one week earlier, is unpreserved for appellate review, as the defendant failed to move to suppress his statements to the police on this ground or otherwise raise the issue before the Supreme Court (see CPL 470.05[2];  People v. Cruz, 149 A.D.3d 774, 775, 52 N.Y.S.3d 368;  People v. Coriolan, 138 A.D.3d 1134, 30 N.Y.S.3d 303).  In any event, although the officer's question and pre-Miranda statement to the defendant constituted custodial interrogation (see People v. Steele, 277 A.D.2d 932, 932, 716 N.Y.S.2d 236;  People v. Ackerman, 162 A.D.2d 793, 794, 558 N.Y.S.2d 216;  People v. Thomas, 51 Misc.3d 603, 608–609, 27 N.Y.S.3d 815 [County Ct., Monroe County] ), the defendant's responses were not inculpatory (see People v. Jenkins, 34 A.D.3d 833, 824 N.Y.S.2d 676;  People v. McMillon, 31 A.D.3d 136, 138, 816 N.Y.S.2d 167), and suppression of the defendant's post-Miranda statements was not required.  “[T]he pre-Miranda statement was not so incriminating in nature that it can be said to have committed the defendant to confessing to the crime, and there is no evidence that the defendant felt so committed by the pre-Miranda statement that he believed himself bound to confess” (People v. Nelson, 73 A.D.3d 811, 811, 899 N.Y.S.2d 659 [citation omitted];  see People v. Jamison, 307 A.D.2d 368, 369, 762 N.Y.S.2d 640).  Nor, despite the defendant's contention to the contrary, was suppression of the defendant's post-Miranda statements to the police required under the “continuous chain of events” theory (People v. Holmes, 145 A.D.2d 908, 909, 536 N.Y.S.2d 289 [internal quotation marks omitted];  see People v. Bethea, 67 N.Y.2d 364, 502 N.Y.S.2d 713, 493 N.E.2d 937;  People v. Chapple, 38 N.Y.2d 112, 378 N.Y.S.2d 682, 341 N.E.2d 243;  People v. Jamison, 307 A.D.2d 368, 368–369, 762 N.Y.S.2d 640).

The defendant's contentions regarding alleged prosecutorial misconduct during summation are partially unpreserved for appellate review (see CPL 470.05[2];  People v. Fletcher, 130 A.D.3d 1063, 1065, 15 N.Y.S.3d 797, affd 27 N.Y.3d 1177, 37 N.Y.S.3d 474, 58 N.E.3d 1111), and, in any event, the challenged remarks were either permissible rhetorical comment (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Macuil, 67 A.D.3d 1025, 1026, 888 N.Y.S.2d 764), fair response to the arguments and issues raised by the defense (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281), fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564), cured by the Supreme Court's charge and instructions to the jury, to which the defendant did not object (see People v. Pocesta, 71 A.D.3d 920, 895 N.Y.S.2d 871), or, if improper, were not so egregious as to deprive the defendant of a fair trial (see People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431;  People v. Pocesta, 71 A.D.3d at 921, 895 N.Y.S.2d 871).

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

The defendant's remaining contention is without merit.

BALKIN, J.P., SGROI, MILLER and CONNOLLY, JJ., concur.