                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    106418
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JOSEPH NADAL,
                    Appellant.
________________________________


Calendar Date:   May 29, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Terrence M. Kelly, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered June 24, 2013, upon a verdict convicting
defendant of the crime of burglary in the second degree.

      During the evening of September 8, 2012, individuals forced
their way into an apartment in the City of Albany and assaulted a
woman who was staying there. The victim summoned the police, who
quickly apprehended defendant and others involved in the break-
in. While in custody, defendant was interviewed by a police
detective and admitted that he had orchestrated the incident in
an effort to collect money from the victim.

      Defendant was subsequently charged in an indictment with
numerous offenses. He moved to suppress, among other things, his
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oral statements to police. County Court denied the motion after
a hearing, finding that defendant had voluntarily made the
statements after waiving his constitutional rights. A jury trial
ensued, at the end of which defendant was convicted of burglary
in the second degree. County Court sentenced defendant to a
prison term of five years to be followed by postrelease
supervision of five years. Defendant now appeals.

      Defendant initially asserts that County Court erred in
declining to suppress his oral statements to police, as the
People failed to meet their burden of "proving the voluntariness
of defendant's statements beyond a reasonable doubt, including
that any custodial interrogation was preceded by the
administration and defendant's knowing waiver of his Miranda
rights" (People v Mattis, 108 AD3d 872, 874 [2013], lvs denied 22
NY3d 957 [2013] [internal quotation marks and citations omitted];
see People v Rankin, 127 AD3d 1335, 1339 [2015]). In that
regard, County Court found credible the hearing testimony of the
detective who conducted the interrogation.1 The initial portion
of the interview was not recorded, which the detective indicated
was due to an equipment malfunction of some sort. The detective
nevertheless testified that he administered Miranda warnings
during the unrecorded portion of the interview, going over them
from a written waiver form that is visible on the table next to
him during the recorded portion of the interview. Defendant then
waived his rights and agreed to answer questions, and his refusal
to "execute [the] written waiver of his Miranda rights does not
invalidate his oral waiver or otherwise render his statement
involuntary" (People v Rankin, 127 AD3d at 1339; see People v
Thornton, 87 AD3d 663, 664 [2011], lv denied 18 NY3d 862 [2011]).
As such, after considering the totality of the circumstances and
according due deference to County Court's credibility
determinations, we find that the People established that


    1
        To the extent that defendant attempts to rely upon the
allegedly inconsistent trial testimony of the detective, we need
only note that "[t]rial testimony may not be considered in
evaluating a suppression ruling on appeal" (People v Jerry, 126
AD3d 1001, 1002 [2015], lv denied ___ NY3d ___ [June 15, 2015];
see People v Abrew, 95 NY2d 806, 808 [2000]).
                              -3-                106418

defendant voluntarily waived his constitutional rights (see
People v Rankin, 127 AD3d at 1339; People v Rizvi, 126 AD3d 1172,
1173 [2015], lv denied 25 NY3d 1076 [2015]).

      Defendant next contends that the verdict was not supported
by legally sufficient evidence and was against the weight of the
evidence. The victim was a drug user and dealer, and gave drugs
to the renter of the apartment in return for permission to stay
there. Defendant told police that he traveled to the apartment
on the night in question to recover money from the victim,
instructing the two women he was traveling with to collect the
money and beat the victim if she did not have it. One of the
women was Chelsey Cornelius, who confirmed at trial that the
group was attempting to recover the money when they went to the
apartment. The victim answered the door, but attempted to shut
it when she saw who was there, at which point Cornelius and the
second woman forced their way inside. The victim then fled to
the back of the apartment and was beaten. Defendant had
previously visited the victim in the apartment, but the jury
could readily determine from the foregoing that defendant and his
accomplices had no reason to believe that they had a "license or
privilege to enter" the apartment on the night in question
(People v Thornton, 4 AD3d 561, 563 [2004], lv denied 2 NY3d 808
[2004]; see Penal Law § 140.00 [5]; People v Graves, 76 NY2d 16,
20 [1990]; People v Dashnaw, 37 AD3d 860, 862 [2007], lv denied 8
NY3d 945 [2007]; People v Randolph, 18 AD3d 1013, 1015 [2005]).
This evidence, when viewed in the light most favorable to the
People, was "legally sufficient to sustain the charge of burglary
in the second degree" (People v Dashnaw, 37 AD3d at 862). We are
further persuaded from "[o]ur independent review of the evidence
. . . that the jury accorded the evidence its proper weight and,
thus, the verdict is not against the weight of the credible
evidence" (People v Thornton, 4 AD3d at 563).

      Defendant lastly claims that the People committed
prosecutorial misconduct by making several improper comments
during summation. He did not object to two of the comments,
rendering his present argument unpreserved with regard to them
(see People v Richards, 124 AD3d 1146, 1147 [2015], lv denied 25
NY3d 992 [2015]; People v VanVorst, 118 AD3d 1035, 1037 [2014]).
County Court sustained his objections to many of the other
                              -4-                  106418

offending comments, giving "prompt and adequate curative
instruction[s] that served to ameliorate any prejudice" (People v
VanVorst, 118 AD3d at 1037; see People v White, 79 AD3d 1460,
1464 [2010], lvs denied 17 NY3d 791, 803 [2011]). Thus, while we
agree with defendant that the bulk of the comments would have
been better left unsaid, the circumstances of this case do not
reveal that they represented a flagrant and pervasive pattern of
misconduct that deprived him of a fair trial (see People v Green,
119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]; People v
White, 79 AD3d at 1464-1465).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
