GUTIERREZ, ANDRES P., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
708
KA 10-01794
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANDRES P. GUTIERREZ, DEFENDANT-APPELLANT.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered January 9, 2009. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree and
robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[4]) and robbery in the second degree (§ 160.10 [1]). Defendant
failed to preserve for our review his contention that the integrity of
the grand jury proceeding was impaired pursuant to CPL 210.35 (5)
inasmuch as he did not move to dismiss the indictment on that ground
(see People v West, 4 AD3d 791, 792-793; see also People v Workman,
277 AD2d 1029, 1031, lv denied 96 NY2d 764; People v Volious, 244 AD2d
871, 872, lv denied 93 NY2d 1029). In any event, we conclude that the
prosecutor’s questioning of defendant before the grand jury was not
improper.
We reject defendant’s further contention that County Court erred
in refusing to suppress his statements to the police. The record
reflects that defendant was not given “ ‘false legal advice’ ” by the
police (People v Salgado, 130 AD2d 960, 961, lv denied 70 NY2d 754).
“Even assuming, arguendo, that the police misled defendant, we
conclude that such deception did not create a substantial risk that
the defendant might falsely incriminate himself” (People v Alexander,
51 AD3d 1380, 1382, lv denied 11 NY3d 733 [internal quotation marks
omitted and emphasis added]), nor can it be said that the alleged
deception was “ ‘so fundamentally unfair as to deny [defendant] due
process’ ” (People v Brown, 39 AD3d 886, 887, lv denied 9 NY3d 873,
quoting People v Tarsia, 50 NY2d 1, 11).
-2- 708
KA 10-01794
Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence with respect to the alleged absence
of corroboration of the accomplice testimony, inasmuch as he failed to
renew his motion for a trial order of dismissal on that ground after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, we conclude that defendant’s contention
lacks merit. The People presented sufficient corroborative evidence
connecting defendant to the commission of the robbery (see People v
Reome, 15 NY3d 188, 191-192). Defendant likewise failed to preserve
for our review his contention that the evidence is legally
insufficient to establish that he participated in the robbery inasmuch
as he failed to move for a trial order of dismissal on that ground
(see People v Gray, 86 NY2d 10, 19; People v Washington, 89 AD3d 1516,
1517, lv denied 18 NY3d 963). In any event, that contention lacks
merit as well (see generally People v Bleakley, 69 NY2d 490, 495). We
reject defendant’s contention that the court erred in refusing to use
his proposed language in charging the jury with respect to the issue
of accessorial liability (see People v Leach, 293 AD2d 760, 761, lv
denied 98 NY2d 677; People v Gonzalez, 279 AD2d 637, lv denied 96 NY2d
800), and we conclude that the court’s charge on that issue was proper
(see Penal Law § 20.00; People v Perez, 89 AD3d 1393, 1394-1395, lv
denied 18 NY3d 961; People v Delphin, 26 AD3d 343, 343-344, lv denied
6 NY3d 893).
Finally, defendant contends that he was denied a fair trial by
prosecutorial misconduct on summation. He failed to preserve that
contention for our review (see CPL 470.05 [2]; People v Wallace, 59
AD3d 1069, 1070-1071, lv denied 12 NY3d 861), and in any event it has
no merit. Contrary to defendant’s contention, “[t]he majority of the
comments in question were within the broad bounds of rhetorical
comment permissible during summations . . ., and they were either a
fair response to defense counsel’s summation or fair comment on the
evidence . . . Even assuming, arguendo, that some of the prosecutor’s
comments were beyond those bounds, we conclude that they were not so
egregious as to deprive defendant of a fair trial” (People v
McEathron, 86 AD3d 915, 916 [internal quotation marks omitted]).
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court