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

1031
KA 11-02471
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NORMAN KOONCE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered October 31, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Erie County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him upon a jury verdict of murder
in the second degree (Penal Law § 125.25 [1]) and criminal possession
of a weapon in the second degree (§ 265.03 [3]). Contrary to the
contention of defendant, we conclude that, viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), the verdict is not against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant next contends that he was denied his right to counsel
when the police questioned him concerning the instant crimes while he
was in custody and represented by counsel in an unrelated criminal
case. We reject that contention. “Under New York’s indelible right
to counsel rule, a defendant in custody in connection with a criminal
matter for which he is represented by counsel may not be interrogated
in the absence of his attorney with respect to that matter or an
unrelated matter unless he waives the right to counsel in the presence
of his attorney” (People v Lopez, 16 NY3d 375, 377). However, “[w]hen
the prior charge has been disposed of by dismissal or conviction, the
indelible right to counsel disappears and the defendant is capable of
waiving counsel on the new charge” (People v Bing, 76 NY2d 331, 344,
rearg denied 76 NY2d 890). Here, a police detective testified at the
Huntley hearing that defendant had been sentenced on the unrelated
criminal case before the detective questioned him regarding these
crimes, and County Court therefore properly determined that the police
                                 -2-                          1031
                                                         KA 11-02471

were not precluded from questioning him regarding the instant crimes
(see People v Brant, 277 AD2d 1022, 1022, lv denied 96 NY2d 756). We
reject defendant’s contention that the right to counsel lasted until
at least 30 days after sentencing, to allow for the filing of a notice
of appeal (see People v Colwell, 65 NY2d 883, 885).

     Defendant further contends that he was denied effective
assistance of counsel because defense counsel failed to request a jury
charge on the voluntariness of defendant’s statements to the police
and failed to object to multiple instances of alleged prosecutorial
misconduct on summation. With respect to the jury charge, we conclude
that defendant failed to demonstrate the absence of a strategic or
other legitimate explanation for defense counsel’s alleged error (see
People v Benevento, 91 NY2d 708, 712; People v Sinclair, 90 AD3d 1518,
1518). Indeed, we note that the statements of defendant to the police
were exculpatory. With respect to the alleged instances of
prosecutorial misconduct, we agree with the People that the prosecutor
did not improperly bolster the adequacy of the police investigation or
the testimony of the prosecution witnesses but, rather, the
prosecutor’s comments were fair response to defense counsel’s
summation (see People v Williams, 98 AD3d 1279, 1280, lv denied 20
NY3d 1066; People v Rivers, 82 AD3d 1623, 1624, lv denied 17 NY3d
904). Thus, defense counsel’s failure to object to those comments
cannot be said to have deprived defendant of effective assistance of
counsel (see People v Hill, 82 AD3d 1715, 1716, lv denied 17 NY3d
806). While we agree with defendant that the prosecutor improperly
denigrated the defense, that misconduct was not so egregious as to
deprive defendant of a fair trial (see People v Heck, 103 AD3d 1140,
1143; People v Lopez, 96 AD3d 1621, 1622, lv denied 19 NY3d 998), and
defense counsel’s failure to object to those comments did not deprive
defendant of effective assistance of counsel (see Heck, 103 AD3d at
1143; People v Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954).

     Defendant contends that the court erred in admitting in evidence
a portion of a recorded jailhouse telephone call made by defendant.
He contends that the taping of the telephone call without a warrant
was prohibited inasmuch as, although defendant was warned that calls
may be monitored or recorded, he was not expressly warned of the
possible use by law enforcement of the statements made in the recorded
calls. Defendant further contends that the admission of the
conversation amounted to the admission of evidence of an uncharged
crime. Defendant’s contentions are not preserved for our review (see
CPL 470.05 [2]) and, in any event, they are without merit. An
eavesdropping warrant is not required when one of the parties to the
conversation consents to the eavesdropping (see People v Lasher, 58
NY2d 962, 963; People v Wood, 299 AD2d 739, 740-741, lv denied 99 NY2d
621), and we conclude that defendant impliedly consented to the
recording here (see generally Curley v Board of Trustees of Vil. of
Suffern, 213 AD2d 583, 583, appeal dismissed 87 NY2d 860; United
States v Friedman, 300 F3d 111, 123, cert denied 538 US 981). We
further conclude that the conversation involved only the present
offense, not an uncharged crime. Contrary to defendant’s further
contention, the sentence is not unduly harsh or severe.
                                 -3-                          1031
                                                         KA 11-02471

     We agree with defendant, however, that the court erred in failing
to rule on defendant’s renewed motion to “rule on whether the jurors
who voted this indictment were present for all the testimony presented
on this case” (see People v Spratley, 96 AD3d 1420, 1421, following
remittal 103 AD3d 1211, lv denied 21 NY3d 1020). In an omnibus
motion, defense counsel requested an attendance sheet of grand jurors
hearing proof on the days on which evidence was presented on this
case, and a list of the grand jurors voting the indictment. The
court’s order holding that the grand jury evidence was legally
sufficient did not address that part of defendant’s omnibus motion
concerning the attendance of the grand jurors who voted the
indictment, and defense counsel therefore renewed that part of his
omnibus motion. The record does not reflect that the court ever ruled
on defendant’s renewed motion, and a failure to rule on a motion
cannot be deemed a denial thereof (see id.; see also People v
Concepcion, 17 NY3d 192, 197-198). We therefore hold the case,
reserve decision and remit the matter to County Court to determine
defendant’s renewed motion.




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
