PEOPLE v. WARREN

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Damon WARREN, appellant.

Decided: November 29, 2004

NANCY E. SMITH, J.P., THOMAS A. ADAMS, STEPHEN G. CRANE, and PETER B. SKELOS, JJ. Lynn W.L. Fahey, New York, N.Y. (Jay L. Weiner of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jacqueline M. Linares, and Diana Villanueva of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered December 4, 2002, convicting him of assault in the first degree, criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Tomei, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements made by him to law enforcement authorities.

ORDERED that the judgment is affirmed.

 The defendant's challenges to various remarks made by the prosecutor in her opening and closing statements to the jury are largely unpreserved for appellate review.   The defendant failed to object to most of the instances of alleged prosecutorial misconduct, or made only general objections, and failed to request curative instructions in instances where the trial court sustained his general objections (see CPL 470.05[2];  People v. White, 5 A.D.3d 511, 772 N.Y.S.2d 601, lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211;  People v. Smith, 298 A.D.2d 607, 748 N.Y.S.2d 694).   In any event, those remarks were either fair comment on the evidence, permissive rhetorical comment responsive to the defendant's summation (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Thompson, 271 A.D.2d 555, 706 N.Y.S.2d 136), or, both individually and cumulatively, not so prejudicial as to constitute reversible error in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The hearing court properly determined that the defendant's arrest was based on probable cause, as provided by the eyewitness's positive identification of the defendant as the shooter by name as well as from a photo array (see People v. Boyd, 244 A.D.2d 497, 664 N.Y.S.2d 335;  People v. Sanders, 239 A.D.2d 528, 658 N.Y.S.2d 958).   Further, the hearing court properly determined that the defendant's statements were voluntarily made after the defendant knowingly and intelligently waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Jones, 277 A.D.2d 329, 716 N.Y.S.2d 79;  People v. Blake, 242 A.D.2d 728, 662 N.Y.S.2d 587;  People v. King, 191 A.D.2d 513, 594 N.Y.S.2d 344).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, either are unpreserved for appellate review or without merit.

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