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

442
KA 10-00532
PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLIFFORD GRAHAM, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered October 2, 2009. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
forged instrument in the first degree (two counts) and petit larceny
(two counts).

     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 two counts each of criminal possession of a
forged instrument in the first degree (Penal Law § 170.30) and petit
larceny (§ 155.25). We reject defendant’s contention that the verdict
is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). The People presented evidence that
defendant passed counterfeit $20 bills at two different locations in
three separate transactions, and the jury was entitled to reject the
testimony of defendant that he was unaware that the bills were
counterfeit (see People v Craven, 48 AD3d 1183, 1184, lv denied 10
NY3d 861; People v Cotton, 197 AD2d 897, 897-898, lv denied 82 NY2d
893). Defendant failed to preserve for our review his contention that
Supreme Court deprived him of a fair trial by failing to sua sponte
instruct the jury that defendant was charged in connection with two
separate incidents, i.e., the incidents at the two separate locations,
and that evidence of guilt with respect to one of the incidents could
not be considered as evidence of guilt with respect to the other (see
CPL 470.05 [2]). 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 agree with defendant that the court’s Sandoval ruling
constitutes an abuse of discretion. Although the “exercise of a trial
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                                                         KA 10-00532

court’s Sandoval discretion should not be disturbed merely because the
court did not provide a detailed recitation of its underlying
reasoning” (People v Walker, 83 NY2d 455, 459), the court in this case
failed to set forth any basis for its Sandoval ruling. We thus
conclude that the court “abdicated its responsibility to balance the
Sandoval factors and determine that the probative value of the
evidence outweighed the potential prejudice to defendant” (People v
Clark, 42 AD3d 957, 959, lv denied 9 NY3d 960; see People v Williams,
56 NY2d 236, 238-240). We conclude, however, that the error is
harmless. “[T]he proof of defendant’s guilt [of criminal possession
of a forged instrument in the first degree and petit larceny] is
overwhelming, and there is no significant probability that the jury
would have acquitted defendant had it not been for the error” (People
v Arnold, 298 AD2d 895, 896, lv denied 99 NY2d 580; see generally
People v Grant, 7 NY3d 421, 423-425).

     Defendant failed to preserve for our review his further
contentions that the court erred in failing to provide limiting
instructions with respect to testimony by the People’s witness that
allegedly infringed upon defendant’s right to remain silent and
constituted hearsay (see CPL 470.05 [2]), and we decline to exercise
our power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Defendant also failed
to preserve for our review his contention that the prosecutor deprived
him of a fair trial by commenting during summation that defendant
refused to sign the statement he gave to the police because he
“wouldn’t be a rat on paper” (see CPL 470.05 [2]). In any event, that
contention is without merit (see generally People v McEathron, 86 AD3d
915, 916, lv denied 19 NY3d 975). The comment in question was within
the broad bounds of rhetorical comment permissible during summations
or fair comment on the evidence (see id.).

     Contrary to defendant’s further contention, we conclude that, by
moving to suppress the statements in issue, he forfeited his right to
seek preclusion based upon the People’s alleged failure to comply with
the notice provisions of CPL 710.30 (see People v Rodriguez, 270 AD2d
956, 957, lv denied 95 NY2d 870; People v Robinson, 225 AD2d 1095,
1095, lv denied 88 NY2d 884). Finally, we reject defendant’s
contention that the court erred in refusing to suppress the statements
he made to the police on September 11, 2009. Inasmuch as defendant’s
counsel was present during the first 20 minutes of the interview and
informed the detectives that defendant was willing to cooperate, it
was permissible for the officers to infer from defendant’s conduct and
his attorney’s assurances that defendant’s waiver of his Miranda
rights was made on the advice of counsel (see People v Farrell, 42
AD3d 954, 955).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
