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

464
KA 11-00773
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HAROLD HALL, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (LAURIE M. BECKERINK OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered October 4, 2010. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the first degree,
assault in the second degree and aggravated criminal contempt.

     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, inter alia, kidnapping in the first degree
(Penal Law § 135.25 [2] [a] [intent to inflict physical injury]) and
assault in the second degree (§ 120.05 [2]). Contrary to defendant’s
contention, County Court properly refused to suppress the statements
that he made to the Sheriff’s Deputy who transported him back to New
York after he was apprehended in Ohio. The court properly determined
that those statements were admissible because they were not
“ ‘provoked, induced [or] encouraged by police conduct or
interrogation’ . . . , but were made voluntarily and spontaneously in
the course of a dialogue initiated and continued by defendant” (People
v Johnson, 277 AD2d 702, 706, lv denied 96 NY2d 831; see generally
People v Gonzales, 75 NY2d 938, 939, cert denied 498 US 833).

     Defendant failed to object to the stenographer’s alleged failure
to transcribe the proceedings during brief pauses in the jury
selection process, and thus he failed to preserve for our review his
contention that he was improperly absent from the courtroom during
those pauses (see People v Vasquez, 89 NY2d 521, 534, cert denied sub
nom. Cordero v Lalor, 522 US 846; People v Jacobs, 298 AD2d 954, 955,
lv denied 99 NY2d 559). In any event, the record establishes that
defendant was in fact in the courtroom during the brief pauses.

     Contrary to defendant’s further contention, the court did not
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                                                         KA 11-00773

abuse its discretion in admitting in evidence photographs portraying
the victim’s injuries (see generally People v Stevens, 76 NY2d 833,
835). “The general rule is that photographs of the [victim’s
injuries] are admissible if[, inter alia,] they tend . . . to
illustrate or elucidate other relevant evidence” (People v Pobliner,
32 NY2d 356, 369, rearg denied 33 NY2d 657, cert denied 416 US 905)
and, here, the photographs were probative with respect to, among other
things, the physical injury element of assault in the second degree
(see generally People v Davis, 39 AD3d 1241, 1242, lv denied 9 NY3d
864; People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

     Defendant’s general motion for a trial order of dismissal is
insufficient to preserve for our review his contention that the
verdict is not supported by legally sufficient evidence (see People v
Gray, 86 NY2d 10, 19). In any event, that contention is without
merit. Contrary to defendant’s further contention, viewing the
evidence in light of the elements of the crimes as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant’s contention that he was denied effective assistance of
counsel based on the failure of defense counsel to object to the
alleged inadequacy of the presentence report “is raised for the first
time in his reply brief and therefore is not properly before us”
(People v Sponburgh, 61 AD3d 1415, 1416, lv denied 12 NY3d 929). In
any event, that contention is without merit inasmuch as “defendant had
every opportunity to advise County Court of any mitigating factors
during sentencing” (People v Singh, 16 AD3d 974, 978, lv denied 5 NY3d
769). In addition, with respect to the remaining grounds raised in
support of defendant’s contention that he was denied effective
assistance of counsel, we conclude that “the evidence, the law, and
the circumstances of [this] particular case, viewed in totality and as
of the time of the representation, reveal that the attorney provided
meaningful representation” (People v Baldi, 54 NY2d 137, 147).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial based on two remarks made by the prosecutor
during summation (see People v Dillon, 38 AD3d 1211, 1211; People v
Black, 38 AD3d 1283, 1286, lv denied 8 NY3d 982). In any event, that
contention is without merit. The two isolated remarks did not exceed
the “broad bounds of rhetorical comment” permitted on summation
(People v McEathron, 86 AD3d 915, 916, lv denied 19 NY3d 975 [internal
quotation marks omitted]; see People v Williams, 28 AD3d 1059, 1061,
affd 8 NY3d 854). Furthermore, the remarks were not so egregious or
improper as to deny defendant a fair trial (see People v Dexter, 259
AD2d 952, 954, affd 94 NY2d 847; Black, 38 AD3d at 1286).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and we conclude that they are
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                                        KA 11-00773

without merit.




Entered:   May 3, 2013         Frances E. Cafarell
                               Clerk of the Court
