People v. McIver

• Decision Date: 20 August 2010
• Citation: 76 A.D.3d 782,906 N.Y.S.2d 667
• Parties: The PEOPLE of the State of New York, Respondent, v. Derek McIVER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 667

76 A.D.3d 782

The PEOPLE of the State of New York, Respondent,

v.Derek McIVER, Defendant-Appellant.

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

Aug. 20, 2010.

Norman P. Effman, Public Defender, Warsaw (Neal J. Mahoney of Counsel), for Defendant-Appellant.

Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND PINE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ). Contrary to the contention of defendant, County Court did not err in refusing to suppress his statement to a police investigator. The testimony of defendant at the suppression hearing that the statement was coerced by correction officers and thus was not voluntary presented a credibility issue that the suppression court was entitledto resolve against defendant ( see People v. Collins, 302 A.D.2d 958, 754 N.Y.S.2d 613, lv. denied 99 N.Y.2d 653, 760 N.Y.S.2d 117, 790 N.E.2d 291). Here, "[t]he testimony of the [investigator] ... supports the court's determination that defendant's statement[ ][was] preceded by Miranda warnings and voluntarily made by defendant, without any promises, threats, or coercion on the part of [the correction officers]" ( People v. Pennick, 2 A.D.3d 1427, 1428, 768 N.Y.S.2d 886, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289).

Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see People v. Livingston, 262 A.D.2d 786, 787-788, 693 N.Y.S.2d 641, lv. denied 94 N.Y.2d 881, 705 N.Y.S.2d 14, 726 N.E.2d 491; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant preserved for our review his contention that he was denied a fair trial based on prosecutorial misconduct on summation only with respect to two of the prosecutor's comments ( see CPL 470.05[2] ). In any event, that contention is without merit inasmuch as all of the prosecutor's allegedly improper comments were either a fair response to defense counsel's summation or fair comment on the evidence ( see People v. Anderson, 52 A.D.3d 1320, 1321, 859 N.Y.S.2d 852, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656...