        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

643
KA 06-01978
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDWARD KITHCART, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered February 1, 2006. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of murder in the second degree (Penal Law § 125.25 [3]
[felony murder]), defendant contends that the evidence is legally
insufficient to establish the underlying felony of rape or attempted
rape. Even assuming, arguendo, that defendant’s motion for a trial
order of dismissal was sufficiently specific to preserve that
contention for our review (see People v Gray, 86 NY2d 10, 19), we
conclude that it is without merit (see People v Washington, 305 AD2d
433, lv denied 100 NY2d 588). Viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we further conclude that the verdict is not against
the weight of the evidence (see generally People v Bleakley, 69 NY2d
490, 495). We reject defendant’s contention that County Court erred
in refusing to suppress statements that he made during a 1992 police
interview. The deception used by the police was not “ ‘so
fundamentally unfair as to deny [defendant] due process’ ” (People v
Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d 886, 887, quoting
People v Tarsia, 50 NY2d 1, 11), nor did it “ ‘create a substantial
risk that the defendant might falsely incriminate himself’ ” (People v
Andrus, 77 AD3d 1283, 1284, lv denied 16 NY3d 827).

     Defendant failed to preserve for our review his further
contention that the court erred in admitting evidence of his refusal
to provide a blood sample for testing (see generally People v Denison,
300 AD2d 1060; People v Hathaway, 245 AD2d 1066), and we decline to
exercise our power to review that contention as a matter of discretion
                                 -2-                           643
                                                         KA 06-01978

in the interest of justice (see CPL 470.15 [6] [a]). We reject the
contention of defendant that the People’s failure to call the officer
who obtained his statement in 2005 as a witness at the Huntley hearing
rendered the evidence establishing the voluntariness of that statement
insufficient. The People met their “burden of going forward to show
the legality of the police conduct in the first instance” (People v Di
Stefano, 38 NY2d 640, 652), as well as their burden of establishing
that the statement in question was voluntarily made, by presenting the
testimony of another officer who was present when defendant was
advised of his Miranda rights and validly waived them before making
that statement (see People v Witherspoon, 66 NY2d 973, 973-974; People
v Drumm, 15 AD3d 910, lv denied 4 NY3d 853).

     Defendant failed to preserve for our review his further
contention that the court erred in permitting the People to introduce
evidence that defendant invoked his right to remain silent by
terminating the 2005 interview (see People v Murphy, 79 AD3d 1451,
1453). Defendant also failed to preserve for our review his
contention that the court erred in permitting the prosecutor to
comment on such evidence during summation (see People v Lombardi, 68
AD3d 1765, lv denied 14 NY3d 802). “In any event, in light of the
evidence presented, we [conclude] that any such errors [are] ‘harmless
beyond a reasonable doubt’ inasmuch as there is ‘no reasonable
possibility that the error[s] might have contributed to defendant’s
conviction’ ” (Murphy, 79 AD3d at 1453, quoting People v Crimmins, 36
NY2d 230, 237). Defendant’s remaining contentions with respect to the
prosecutor’s alleged misconduct during summation are not preserved for
our review (see CPL 470.05 [2]), and we decline to exercise our power
to review them as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). The court did not abuse its discretion in
denying defendant’s request to discharge defense counsel (see People v
Porto, 16 NY3d 93, 99-101), and the record establishes that defendant
received meaningful representation (see generally People v Baldi, 54
NY2d 137, 147). Finally, defendant failed to preserve for our review
his further contention that the court erred in sentencing him without
the benefit of an adequate presentence report, and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see People v Diaz, 26 AD3d 768).




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
