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

358
KA 15-00534
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK J. MALTESE, ALSO KNOWN AS MARK JOSEPH
MALTESE, ALSO KNOWN AS MARK MALTESE,
DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

MARK J. MALTESE, DEFENDANT-APPELLANT PRO SE.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (MELISSA L. CIANFRINI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered March 4, 2015. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree (three
counts), burglary in the third degree, criminal mischief in the second
degree and grand larceny in the third 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 three counts of robbery in the second degree
(Penal Law § 160.10 [2] [b]), and one count each of burglary in the
third degree (§ 140.20), criminal mischief in the second degree
(§ 145.10), and grand larceny in the third degree (§ 155.35 [1]). By
making only a general motion for a trial order of dismissal, defendant
failed to preserve for our review his contention in his main and pro
se supplemental briefs that the evidence is legally insufficient to
support the conviction (see People v Hawkins, 11 NY3d 484, 492).
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 reject
defendant’s further contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant also contends in his main and pro se supplemental briefs
that his statements to the police were not knowing and voluntary and
that County Court therefore erred in refusing to suppress them because
he was not given water the first time he requested it; “it was
possible” that he was “complaining” from opiate withdrawal symptoms
and may have appeared intoxicated; he was in custody for six hours
before he was interrogated, and was questioned for 2½ hours; and he
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                                                         KA 15-00534

was never given any medication while in custody. We reject that
contention. Here, the officer who questioned defendant testified at
the suppression hearing that defendant never requested any form of
medication or food, and did not complain that he was suffering from
withdrawal. Furthermore, although defendant’s first request for water
was denied, he was thereafter provided with water and was allowed to
take several cigarette breaks. Thus, we conclude that “the totality
of the circumstances here does not ‘bespeak such a serious disregard
of defendant’s rights, and [was not] so conducive to unreliable and
involuntary statements, that the prosecutor has not demonstrated
beyond a reasonable doubt that the defendant’s will was not
overborne’ ” (People v Jin Cheng Lin, 26 NY3d 701, 725). Contrary to
defendant’s related contention, the fact that defendant and the
officer conducting the questioning were acquaintances does not warrant
a different conclusion (see generally People v Gates, 101 AD2d 635,
635-636).

     We reject defendant’s further contention in his main and pro se
supplemental briefs that the police lacked probable cause to arrest
him. “ ‘Probable cause does not require proof sufficient to warrant a
conviction beyond a reasonable doubt but merely [requires] information
sufficient to support a reasonable belief that an offense has been or
is being committed or that evidence of a crime may be found in a
certain place’ ” (People v Myhand, 120 AD3d 970, 970, lv denied 25
NY3d 952). Here, a witness followed defendant’s car directly from the
store that was burglarized to a house, and a police officer was
allowed to enter the house where defendant was seen walking up the
stairs holding the stolen television. In addition, an occupant of the
house provided a statement that defendant left the house with another
man and came back with a television. We thus conclude that the police
had probable cause to arrest defendant (see id.).

     Defendant contends in his main brief that the court erred in
admitting his written statement in evidence because the People failed
to comply with the CPL 710.30 notice requirements, i.e., they
indicated in their CPL 710.30 notice that defendant’s written
statement was made on September 13, 2013, when it was actually made on
November 27, 2013. We reject that contention. “ ‘[T]he purpose of
the statute will be served when the defendant is provided an
opportunity to challenge the admissibility of the statement[]’ ”
(People v Simpson, 35 AD3d 1182, 1183, lv denied 8 NY3d 990). While
the statement displays the date September 13, 2013 on the top lefthand
corner of the first page, the dates underneath defendant’s signature
at the bottom of both pages of the statement indicate that it was made
on November 27, 2013. We conclude that this mere clerical error did
not hinder defendant from challenging the admissibility of the
statement during the suppression hearing (see id.). We reject
defendant’s final contention in his main brief that the sentence is
unduly harsh and severe.

     By failing to object to the jury charge as given, defendant
failed to preserve for our review his contention in his pro se
supplemental brief that the jury charge was improper with respect to
the issue of voluntary statements (see generally People v Robinson, 88
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                                                         KA 15-00534

NY2d 1001, 1001-1002). In any event, we conclude that the court’s
charge, viewed in its entirety, “fairly instructed the jury on the
correct principles of law to be applied to the case and does not
require reversal” (People v Ladd, 89 NY2d 893, 896). We similarly
reject defendant’s contention in his pro se supplemental brief that
the court erred in denying his request for an adverse inference charge
concerning the failure of the police to record his interrogation
electronically (see People v Durant, 26 NY3d 341, 352-353).
Defendant’s contentions in his pro se supplemental brief that the
prosecutor should have been disqualified and that defense counsel was
ineffective based on a conflict of interest concern matters outside of
the record and must be raised by way of a motion pursuant to CPL
article 440 (see e.g. People v Sanford, 138 AD3d 1435, 1436).

     We have reviewed defendant’s remaining contentions in his pro se
supplemental brief and conclude that none requires modification or
reversal of the judgment.




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
