People v. Fregosi

• Decision Date: 02 February 1999
• Citation: 685 N.Y.S.2d 32,258 A.D.2d 259
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JOSE FREGOSI, Also Known as ANTHONY FRAGOSA, Appellant.

258 A.D.2d 259

685 N.Y.S.2d 32

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.JOSE FREGOSI, Also Known as ANTHONY FRAGOSA, Appellant.

Decided February 2, 1999.

Concur — Nardelli, J.P., Lerner, Mazzarelli and Saxe, JJ.

Defendant's suppression motion was properly denied. The record, including evidence of explicit written permission to search, supports the hearing court's conclusion that defendant's brother's consent to search the apartment they shared was voluntary (People v Gonzalez, 39 NY2d 122).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The People's circumstantial case was overwhelming and the jury had ample basis upon which to discredit defendant's testimony.

The court properly granted the People's request for a missing witness charge with respect to defendant's brother. Although the brother initially cooperated with the police in the investigation since he mistakenly believed that he was helping defendant locate a car he had purchased, the court properly rejected defendant's contention that his brother was under the control of the People, rather than defendant (see, People v Gonzalez, 68 NY2d 424).

Defendant's contentions with respect to the prosecutor's summation are unpreserved for failure to object or lack of specific objection and we decline to review them in the interest of justice. Were we to review these claims, we would find that although some of the prosecutor's comments were improper, defendant was not deprived of a fair trial since there was no pattern of inflammatory, prejudicial remarks and the evidence of guilt was overwhelming (People v Crimmins, 36 NY2d 230; People v D'Alessandro, 184 AD2d 114, lv denied 81 NY2d 884). The challenged portions of the People's cross-examination were permissible in light of the claims made by defendant in his direct testimony (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976).

We perceive no abuse of sentencing discretion and find that defendant's claim that the sentence was based on improper criteria is unpreserved and unsupported by the record.