People v. Owusu

• Citation: 652 N.Y.S.2d 914,234 A.D.2d 893
• Parties: PEOPLE of the State of New York, Respondent, v. Joseph OWUSU, Appellant.
• Decision Date: 30 December 1996
• Court: New York Supreme Court — Appellate Division

Page 914

652 N.Y.S.2d 914

234 A.D.2d 893

PEOPLE of the State of New York, Respondent, v. Joseph OWUSU, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1996.

Garry Stephen Hanlon, Rochester, for Appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for Respondent.

Before DENMAN, P.J., and LAWTON, FALLON and BALIO, JJ.

MEMORANDUM.

Defendant contends that reversal is mandated because Supreme Court failed to strike the testimony of a witness after he invoked his Fifth Amendment privilege against self-incrimination. Because defendant neither objected to nor moved to strike that testimony, his contention has not been preserved for our review (see, CPL 470.05[2]; People v. Kaufman, 156 A.D.2d 718, 719, 549 N.Y.S.2d 471, lv. denied 76 N.Y.2d 737, 558 N.Y.S.2d 899, 557 N.E.2d 1195). In any event, striking that testimony was not warranted because the invocation of the Fifth Amendment privilege concerned crimes that did not pertain to the facts surrounding the crimes for which defendant was charged (see, People v. Kaufman, supra; People v. Fominas, 111 A.D.2d 868, 869, 490 N.Y.S.2d 268).

Defendant further contends that the court erred in failing to suppress his statement to the police on the ground that it was involuntary because it was induced by police promises of favorable treatment. Because that contention was not raised at the suppression hearing, it has not been preserved for our review (see, People v. Smith, 55 N.Y.2d 888, 890, 449 N.Y.S.2d 19, 433 N.E.2d 1267; People v. Ruggles, 159 A.D.2d 969, 552 N.Y.S.2d 769, lv. denied 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412) and, in any event, it lacks merit (see, People v. Richardson, 202 A.D.2d 958, 959, 609 N.Y.S.2d 981, lv. denied 83 N.Y.2d 914, 614 N.Y.S.2d 396, 637 N.E.2d 287; People v. Sumeriski, 119 A.D.2d 999, 500 N.Y.S.2d 900). Defendant also contends that his statement should have been suppressed because it was the result of an improper warrantless arrest. The suppression court refused to suppress the statement on that ground, and there is no basis to disturb that determination, which is fully supported by the record (see generally, People v. Jackson, 101 A.D.2d 955, 956, 477 N.Y.S.2d 441).

We likewise reject defendant's contention that the court erred in admitting the hearsay statements of alleged coconspirators. It is well established that a declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator (see, People v. Tran, 80 N.Y.2d 170, 179, 589 N.Y.S.2d 845, 603 N.E.2d 950, rearg. denied 81 N.Y.2d 784, 594 N.Y.S.2d 721, 610 N.E.2d 394). That evidence may be admitted, however, only where the People establish a prima facie case of conspiracy without recourse to the declaration sought to be introduced (see, People v. Salko, 47 N.Y.2d 230, 237-238, 417 N.Y.S.2d 894, 391 N.E.2d 976, rearg. denied 47 N.Y.2d 1010, 420 N.Y.S.2d 223, 394 N.E.2d 292). Here, a prima facie case of a conspiracy to sell heroin to undercover officers was established through defendant's admissions and the testimony of the undercover officers and the coconspirators (see, People v. Comfort, 151 A.D.2d 1019, 1020, 542 N.Y.S.2d 84, lv. denied 74 N.Y.2d 807, 546 N.Y.S.2d 565, 545 N.E.2d 879; see also, People v. Warren, 156 A.D.2d 972, 549 N.Y.S.2d 263, lv. denied 75 N.Y.2d 925, 555 N.Y.S.2d 44, 554 N.E.2d 81).

We also reject defendant's contention that prosecutorial misconduct on summation warrants reversal. The comments by the prosecutor were a fair response to comments by defense counsel on summation attacking the credibility of the prosecution witnesses and implying that they had fabricated evidence (see, People v. Smart, 224 A.D.2d 999, 637 N.Y.S.2d 826; People v. Crawford, 130 A.D.2d 678, 515...