STALKER, JERAD, PEOPLE v

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2014
• Docket: KA 13-00264
• Status: Published

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

1139 KA 13-00264 PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JERAD STALKER, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.

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, lv denied 18 NY3d 954; People v Nix, 78 AD3d 1698, 1699, lv denied 16 NY3d 799, cert denied ___ US ___, 132 S Ct 157). 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, lv denied 3 NY3d 657), 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, lv denied 72 NY2d 913). 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 -2- 1139 KA 13-00264

892, 893-894), or to request a limiting instruction with respect to that statement (see People v VanDemps, 118 AD3d 1146, 1148, lv denied 23 NY3d 1061).

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), 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, lv denied 22 NY3d 1199). 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), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). We further conclude that the court’s Sandoval ruling did not constitute an abuse of discretion (see People v Stevens, 109 AD3d 1204, 1205, lv denied 23 NY3d 1043). Finally, the sentence is not unduly harsh or severe.

Entered: November 14, 2014 Frances E. Cafarell Clerk of the Court