People v. Gainey

34 A.D.3d 1250, 823 N.Y.S.2d 711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2006
• Status: Published

Opinion

Appeal from a judgment of the Orleans County Court (James E Punch, J.), rendered April 25, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree and reckless endarigerment in the first degree.

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

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon in the second degree (§ 265.03 [2]) and reckless endangerment in the first degree (§ 120.25). The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Wellsby, 30 AD3d 1092 [2006]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to the further contention of defendant, the record of the Huntley hearing supports County Court’s determination that defendant waived his Miranda rights and that his responses during the police officers’ interrogation were voluntary (see People v Wurthmann, 26 AD3d 830, 830-831 [2006], lv denied 7 NY3d 765 [2006]). Present—Kehoe, J.P., Martoche, Centra, Green and Pine, JJ.