         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1176
KA 07-01186
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DON PETERKIN, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered February 13, 2007. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree (six counts), burglary in the first degree, kidnapping in the
second degree (three counts), aggravated sexual abuse in the first
degree, assault in the second degree, attempted assault in the second
degree, petit larceny and unlawful imprisonment in the first 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, inter alia, six counts of robbery in the first
degree (Penal Law § 160.15 [4]) and one count of burglary in the first
degree (§ 140.30 [4]), arising from two separate incidents. We reject
defendant’s contention that Supreme Court erred in refusing to
suppress his statements to the police. The evidence presented at the
suppression hearing supports the determination of the court that
defendant’s waiver of his Miranda rights was knowing, voluntary and
intelligent. Contrary to defendant’s contention, the record of the
suppression hearing fails to establish that he was intoxicated at the
time he waived those rights “to the degree of mania, or of being
unable to understand the meaning of his statements” (People v
Schompert, 19 NY2d 300, 305, cert denied 389 US 874; see People v
Lake, 45 AD3d 1409, 1410, lv denied 10 NY3d 767). Contrary to
defendant’s further contention, “[i]t is well settled that where a
person in police custody has been issued Miranda warnings and
voluntarily and intelligently waives [his or her Miranda] rights, it
is not necessary to repeat the warnings prior to subsequent
questioning within a reasonable time thereafter, so long as the
custody has remained continuous” (People v Glinsman, 107 AD2d 710,
710, lv denied 64 NY2d 889, cert denied 472 US 1021; see People v
Jacobson, 60 AD3d 1326, 1327, lv denied 12 NY3d 916). The evidence
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                                                         KA 07-01186

presented at the suppression hearing also supports the court’s
determination that defendant remained in custody between the reading
of the Miranda warnings and the renewed questioning of defendant and
that such a time period was not unreasonable (see People v Cooper, 59
AD3d 1052, 1054, lv denied 12 NY3d 852; People v Hawkes, 39 AD3d 1209,
1211, lv denied 9 NY3d 844, 845; People v Leflore, 303 AD2d 1041,
1042, lv denied 100 NY2d 563).

     Defendant contends that the evidence is legally insufficient to
support the conviction of counts 1 through 15 of the indictment
because he established that he was too intoxicated to form the intent
to commit the crimes charged in those counts, and thus the People
failed to establish that he had the specific intent to commit those
crimes. Defendant failed to move for a trial order of dismissal on
that ground, however, and he therefore failed to preserve his
contention for our review (see People v Gray, 86 NY2d 10, 19). In any
event, that contention is without merit. Although there was some
evidence tending to establish that defendant had consumed alcohol
prior to committing the crimes at issue, “[v]iewing the evidence in
the light most favorable to the People . . ., we conclude that a
rational trier of fact could find that defendant had the requisite
intent to commit [those] crimes” (People v Martinez, 73 AD3d 1432,
1433, lv denied 15 NY3d 807). Defendant further contends that the
verdict with respect to counts 16 and 17 of the indictment, charging
defendant with robbery in the first degree (Penal Law § 160.15 [4])
and unlawful imprisonment in the first degree (§ 135.10),
respectively, is against the weight of the evidence. Viewing the
evidence in light of the elements of those crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
contention (see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that his right of confrontation was violated
by the admission in evidence of a report regarding part of the DNA
analysis of a plastic bottle that defendant forcibly inserted into the
vagina of the adult female victim. That contention is not preserved
for our review inasmuch as defendant objected to the admission of that
report solely on the ground that the People failed to establish a
sufficient foundation (see People v Bolling, 49 AD3d 1330, 1331;
People v Robinson, 41 AD3d 1183, lv denied 9 NY3d 880). In any event,
that contention is without merit (see generally People v Freycinet, 11
NY3d 38, 41-42).

     Contrary to defendant’s further contention, we conclude that
defense counsel was not ineffective in failing to request a charge on
the affirmative defense that the weapon used in the crimes at issue
“was not a loaded weapon from which a shot, readily capable of
producing death or other serious physical injury, could be discharged”
(Penal Law § 160.15 [4]; see § 140.30 [4]). “There can be no denial
of effective assistance of . . . counsel arising from [defense]
counsel’s failure to ‘make a motion or argument that has little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152, quoting People
v Stultz, 2 NY3d 277, 287). Here, “[t]here is no reasonable view of
the evidence that would allow the jury to conclude, without resorting
to speculation, that defendant” displayed a weapon that was inoperable
                                 -3-                          1176
                                                         KA 07-01186

or unloaded (People v Taylor, 83 AD3d 1505, 1506, lv denied 17 NY3d
822; see People v Darden, 57 AD3d 1522, lv denied 12 NY3d 815). The
fact that no weapon was discovered does not warrant the submission of
an instruction on the affirmative defense (see People v Flores, 47
AD3d 506, 507, lv denied 10 NY3d 840). We have considered defendant’s
remaining allegations of ineffective assistance of counsel and,
viewing the evidence, the law and the circumstances of this case, in
totality and as of the time of the representation, we conclude that
defense counsel provided meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and conclude that they are without
merit.




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