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

632
KA 10-01368
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BERNARD THOMAS, JR., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Shirley
Troutman, J.), rendered May 21, 2010. 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: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]). We conclude at the outset that Supreme Court properly refused
to suppress DNA evidence obtained from defendant and certain
statements that defendant made to the police. Contrary to defendant’s
contention, the DNA evidence was not obtained in violation of his
right to counsel. The court properly determined that defendant was
not in custody until well after that evidence was obtained (see
generally People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851),
and we thus conclude that defendant’s waiver of the right to counsel
during the interview in which that evidence was obtained was valid
(see People v Davis, 75 NY2d 517, 522-523; People v Casey, 37 AD3d
1113, 1115-1116, lv denied 8 NY3d 983). Defendant’s further
contention that his constitutional rights were violated by the use of
the recorded jailhouse telephone conversations between defendant and
his mother is not preserved for our review (see CPL 470.05 [2]), and
we decline to exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
conclude, however, that the court erred in refusing to suppress
defendant’s statements to his wife on the ground that they were
subject to the marital privilege (cf. People v Felton, 145 AD2d 969,
970, lv denied 73 NY2d 1014). The record of the suppression hearing
established that those statements were obtained surreptitiously by the
police, inasmuch as defendant and his wife were unaware that the
police were monitoring their conversation from an adjacent room.
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Indeed, the statements were described at trial by the police rather
than by defendant’s wife. Nevertheless, we conclude that the error is
harmless (see generally People v Crimmins, 36 NY2d 230).

     Defendant further contends that he was denied a fair trial based
on various erroneous rulings of the court at trial. Defendant failed
to preserve for our review his contention that his constitutional
right of confrontation was violated inasmuch as he failed to object to
the questioning implicating that right during the prosecutor’s cross-
examination of him (see generally People v Dombroff, 44 AD3d 785, 787,
lv denied 9 NY3d 1005), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). Contrary to defendant’s further contention,
the court’s “ ‘Sandoval compromise . . . reflects a proper exercise of
the court’s discretion’ ” (People v Kelly, 79 AD3d 1642, 1642, lv
denied 16 NY3d 832). Defendant contends that the court erred in
denying his request to redact the recording of the jailhouse telephone
call between defendant and his mother that was published by the People
on rebuttal, in which defendant indicated that he would be willing to
serve 10 to 15 years in prison. That contention lacks merit inasmuch
as the court subsequently instructed the jury that it could not
consider or speculate concerning matters related to sentencing or
punishment, and the jury is presumed to have followed the court’s
instruction (see People v Davis, 58 NY2d 1102, 1103-1104; People v
McCullough, 8 AD3d 1122, 1122-1123, lv denied 3 NY3d 709). Defendant
did not preserve for our review his further contention that the
court’s limiting instruction should have been given when the subject
recording was played for the jury (see CPL 470.05 [2]), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
note that the loss of the subject recording does not preclude our
review of defendant’s present contention because we may glean from the
record the relevant information from the recording (see People v
Jackson, 11 AD3d 928, 930, lv denied 3 NY3d 757; see generally People
v Yavru-Sakuk, 98 NY2d 56, 60).

     Even assuming, arguendo, that the court erred in denying
defendant’s request for a missing witness charge with respect to two
witnesses (see generally People v Savinon, 100 NY2d 192, 196-197), we
conclude that such error is harmless inasmuch as the evidence of
defendant’s guilt is overwhelming, and there is no significant
probability that defendant would have been acquitted but for the error
(see generally Crimmins, 36 NY2d at 241-242). Contrary to defendant’s
contention, the court properly refused to charge manslaughter in the
second degree (Penal Law § 125.15 [1]) as an additional lesser
included offense of murder in the second degree (§ 125.25 [1]
[intentional murder]) as charged in the indictment. “Although we
agree with defendant that manslaughter in the second degree may be a
lesser included offense of intentional murder . . ., we conclude that
there was no reasonable view of the evidence that would permit the
jury to find that defendant committed manslaughter in the second
degree but did not commit . . . intentional murder” (People v
Stanford, 87 AD3d 1367, 1368, lv denied 18 NY3d 886; see also People v
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                                                         KA 10-01368

Gonzalez, 302 AD2d 870, 871, affd 1 NY3d 464).

     We also conclude that the court properly denied defendant’s
motions for a mistrial based on the admission in evidence of
defendant’s October 28, 1975 statement to the police and the Miranda
warnings card that defendant initialed in 1975 with respect to that
statement. Those exhibits were properly admitted in evidence
subsequent to the testimony of a police detective who authenticated
the documents (see Prince, Richardson on Evidence § 9-103 [b] [Farrell
11th ed]). In addition, the court properly refused to grant
defendant’s motion for a mistrial based on one of the prosecutor’s
comments during summation (see People v Stanton, 43 AD3d 1299, 1299-
1300, lv denied 9 NY3d 993). Defendant failed to preserve for our
review his further contention that he was deprived of a fair trial
based on several other alleged instances of prosecutorial misconduct
(see CPL 470.05 [2]; People v Rumph, 93 AD3d 1346, 1347; People v
Valez, 256 AD2d 135, lv denied 93 NY2d 879). In any event, “ ‘any
alleged [prosecutorial] misconduct was not so pervasive or egregious
as to deprive defendant of a fair trial’ ” (People v Szyzskowski, 89
AD3d 1501, 1503). The contention of defendant that he was denied a
fair trial by the court’s failure to submit to the jury the issue of
the voluntariness of his statements to the police is also not
preserved for our review inasmuch as defendant did not request that
relief at trial, and we decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see People v Torres, 205 AD2d 350, 350-351, lv denied 84 NY2d
873). There is no merit to defendant’s further contention that the
court erred in denying his motion for a trial order of dismissal with
respect to the felony murder counts, of which he was acquitted.
Defendant speculates that the alleged error “may well have led to a
compromise verdict,” but “[a] compromise verdict is not a ground for
reversal provided the verdict is not repugnant” (People v Fontanez,
254 AD2d 762, 765, lv denied 93 NY2d 852 [internal quotation marks
omitted]), and defendant does not contend that the verdict is
repugnant.

     Defendant waived his contention that the court erred in
discharging a sworn juror at trial by consenting to such discharge
(see People v Barner, 30 AD3d 1091, 1092, lv denied 7 NY3d 809; cf.
People v Noguel, 93 AD3d 1319, 1320; see also People v Davis, 83 AD3d
860, 861; see generally People v Colon, 90 NY2d 824, 826). Viewing
the evidence, the law and the circumstances of this case, in totality
and as of the time of the representation, we reject defendant’s
contention that he was denied effective assistance of counsel (see
generally People v Baldi, 54 NY2d 137, 147). Defendant’s challenge to
the legal sufficiency of the evidence is not preserved for our review
because he failed to renew his motion for a trial order of dismissal
after presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). In any event, that challenge lacks merit.
Viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), “we conclude that defendant’s
intent to kill the victim was inferable from his conduct” (People v
Lewis, 93 AD3d 1264, 1267; see People v Geddes, 49 AD3d 1255, 1255-
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                                                         KA 10-01368

1256, lv denied 10 NY3d 863; cf. Gonzalez, 302 AD2d at 871). In
addition, 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).
Finally, the sentence is not unduly harsh or severe.




Entered:   June 29, 2012                       Frances E. Cafarell
                                               Clerk of the Court
