Hyperlawhypertext legal database People v. Stalker 122 A.D.3d 1317

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People v. Stalker

122 A.D.3d 1317 Court N.Y. App. Div. Decision date 2014-11-14 English

Judges Present — Centra, J.P, Fahey, Sconiers, Whalen and DeJoseph, JJ.

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p. 1317
The People of the State of New York, Respondent, v Jerad Stalker, Appellant.
[995 NYS2d 887]

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered January 14, 2013. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree and petit larceny (two counts).

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that he was deprived of a fair trial by the improper admission of rebuttal testimony and the failure of County Court to give the jury a limiting instruction with respect to the use of such testimony. The rebuttal testimony concerned a statement made by defendant to a State Trooper regarding property stolen during the burglary. We note at the outset that, by failing to seek a ruling with respect to the statement at issue or to object to its admission at trial, defendant abandoned any contention that the statement should have been suppressed (see People v Adams, 90 AD3d 1508 , 1509 [2011], lv denied 18 NY3d 954 [2012]; People v

p. 1318
Nix, 78 AD3d 1698 , 1699 [2010], lv denied 16 NY3d 799 [2011], cert denied 565 US —, 132 S Ct 157 [2011]). Defendant failed to preserve for our review his further contentions that the statement was improperly admitted in evidence as an admission (see generally People v Broadus, 8 AD3d 398 , 398 [2004], lv denied 3 NY3d 657 [2004]), and that the court erred in failing to give a limiting instruction with respect to its use (see CPL 470.05 [2]; People v Portis, 141 AD2d 773 , 773-774 [1988], lv denied 72 NY2d 913 [1988]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). In addition, we conclude that defendant was not denied effective assistance of counsel based upon defense counsel’s failure to move to suppress the statement to the Trooper (see People v De Mauro, 48 NY2d 892 , 893-894 [1979]), or to request a limiting instruction with respect to that statement (see People v Van Demps, 118 AD3d 1146 , 1148 [2014], lv denied 23 NY3d 1061 [2014]).

Defendant also failed to preserve for our review his contentions that the evidence is not legally sufficient to support the conviction (see People v Gray, 86 NY2d 10 , 19 [1995]), and that he was deprived of a fair trial by the prosecutor’s allegedly improper remarks during summation (see People v James, 114 AD3d 1202 , 1206-1207 [2014], lv denied 22 NY3d 1199 [2014]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490 , 495 [1987]). We further conclude that the court’s Sandoval ruling did not constitute an abuse of discretion (see People v Stevens, 109 AD3d 1204 , 1205 [2013], lv denied 23 NY3d 1043 [2014]). Finally, the sentence is not unduly harsh or severe.

Present — Centra, J.P, Fahey, Sconiers, Whalen and DeJoseph, JJ.

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