People v. Borgella

• Decision Date: 02 December 2020
• Docket Number: 2017–11728,Ind. No. 3492/14
• Citation: 133 N.Y.S.3d 443 (Mem),189 A.D.3d 872
• Parties: The PEOPLE, etc., respondent, v. Andy BORGELLA, appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 872

133 N.Y.S.3d 443 (Mem)

The PEOPLE, etc., respondent,

v.Andy BORGELLA, appellant.

2017–11728

Ind. No. 3492/14

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

Argued—October 19, 2020

December 2, 2020

Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Brufee, and Denise Pavlides of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alexander Jeong, J.), rendered July 20, 2017, convicting him of murder in the second degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the search of his historical cell site location information (hereinafter CSLI) records, obtained by means of a court order issued upon a showing of less than probable cause, violated the Fourth Amendment (see Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Lanham, 177 A.D.3d 637, 638, 113 N.Y.S.3d 119 ; People v. Taylor, 172 A.D.3d 1110, 98 N.Y.S.3d 456 ). In any event, any error in the Supreme Court's admission of the defendant's CSLI records was harmless, because the evidence of guilt was overwhelming and there was no reasonable possibility that the error might have contributed to the defendant's convictions (see People v. Brown, 181 A.D.3d 701, 702, 117 N.Y.S.3d 852 ; People v. Taylor, 172 A.D.3d at 1111, 98 N.Y.S.3d 456 ).

The defendant's contention that certain remarks made by the prosecutor during summation require reversal is unpreserved for appellate review, since the defendant failed to object to the remarks at issue (see CPL 470.05[2] ; People v. Alisuarez, 186 A.D.3d 1391, 128 N.Y.S.3d 880 ). In any event, although some of the prosecutor's remarks in summation were improper, they were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v. Anglin, 178 A.D.3d 839, 841, 115 N.Y.S.3d 377 ; People v. Lopez, 150 A.D.3d 1266, 1267, 52 N.Y.S.3d 902 ).

The defendant's claim that the Supreme Court failed to conduct a sufficient inquiry of a juror who reported to the court that he heard someone take a picture in the courtroom was waived, as defense counsel agreed with the court that the juror could be fair and impartial and did not request that the court conduct further questioning (see People v. Armstrong, 138 A.D.3d 877, 879, 29 N.Y.S.3d 475 ).

Contrary to the defendant's contention, the Supreme Court was within its discretion in suspending jury deliberations for a period of over 24 hours and denying the defendant's motion for a mistrial, despite that the defendant did not waive the provisions of CPL 310.10(2) or consent to...