People v. Bajana

• Decision Date: 22 March 2011
• Parties: The PEOPLE, etc., respondent,v.Victor BAJANA, appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1111

919 N.Y.S.2d 194

2011 N.Y. Slip Op. 02407

The PEOPLE, etc., respondent,

v.Victor BAJANA, appellant.

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

March 22, 2011.

Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.JOSEPH COVELLO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.), rendered March 20, 2009, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress his statement to a law enforcement official and physical evidence.

ORDERED that the judgment is affirmed.

The evidence presented at the suppression hearing demonstrated that the arresting officer had probable cause to arrest the defendant ( see CPL 140.10 [1][b]; People v. Rios, 11 A.D.3d 641, 782 N.Y.S.2d 863). Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence that was discovered incident to his arrest. Moreover, since the defendant did not seek to reopen the suppression hearing based on the trial testimony, or move for a mistrial, the question of whether the trial testimony undermined the hearing court's determination is not properly before this Court ( see People v. Moss, 67 A.D.3d 1027, 889 N.Y.S.2d 642). Furthermore, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the statement he made to a law enforcement officer. Volunteered statements are admissible, provided that the defendant, as here, “spoke with genuine spontaneity ‘and not [as] the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed’ ” ( People v. Rivers, 56 N.Y.2d 476, 479, 453 N.Y.S.2d 156, 438 N.E.2d 862, quoting People v. Maerling, 46 N.Y.2d 289, 302–303, 413 N.Y.S.2d 316, 385 N.E.2d 1245; see People v. Tyrell, 67 A.D.3d 827, 828, 888 N.Y.S.2d 610).

The defendant also contends that he was deprived of a fair trial because of certain allegedly improper comments made by the prosecutor on summation. The defendant's contentions are unpreserved for appellate review ( see CPL 470.05[2] ) because he failed to object to the comments he now challenges ( see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Damon, 78 A.D.3d 860, 911 N.Y.S.2d 127), or failed to request additional relief when the Supreme Court sustained objections or provided curative instructions ( see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370; People v. Damon, 78 A.D.3d 860, 911 N.Y.S.2d 127; People v. Hollenquest, 48 A.D.3d 592, 593, 849 N.Y.S.2d 899). In any event, reversal is not warranted because the prosecutor's remarks did not, singly or in combination, deprive the defendant of a fair trial ( see People v. Garcia–Villegas, 78 A.D.3d 727, 728, 909 N.Y.S.2d 660, lv. denied 15 N.Y.3d 953, 917 N.Y.S.2d 112, 942 N.E.2d 323; People v. Dunbar, 74 A.D.3d 1227, 1229, 905 N.Y.S.2d 222, lv. denied 15 N.Y.3d 851, 909 N.Y.S.2d 28, 935 N.E.2d 820; People v. Hendrix, 60 A.D.3d 1081, 1082–1083, 876 N.Y.S.2d 154; People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95). Defense counsel's failure to object to allegedly improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel ( see People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Cass, 79 A.D.3d 768, 914 N.Y.S.2d 176;...