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

1139
KA 13-00264
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JERAD STALKER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered January 14, 2013. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree and
petit larceny (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, burglary in the second degree (Penal Law §
140.25 [2]), defendant contends that he was deprived of a fair trial
by the improper admission of rebuttal testimony and the failure of
County Court to give the jury a limiting instruction with respect to
the use of such testimony. The rebuttal testimony concerned a
statement made by defendant to a State Trooper regarding property
stolen during the burglary. We note at the outset that, by failing to
seek a ruling with respect to the statement at issue or to object to
its admission at trial, defendant abandoned any contention that the
statement should have been suppressed (see People v Adams, 90 AD3d
1508, 1509, lv denied 18 NY3d 954; People v Nix, 78 AD3d 1698, 1699,
lv denied 16 NY3d 799, cert denied ___ US ___, 132 S Ct 157).
Defendant failed to preserve for our review his further contentions
that the statement was improperly admitted in evidence as an admission
(see generally People v Broadus, 8 AD3d 398, 398, lv denied 3 NY3d
657), and that the court erred in failing to give a limiting
instruction with respect to its use (see CPL 470.05 [2]; People v
Portis, 141 AD2d 773, 773-774, lv denied 72 NY2d 913). 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]). In
addition, we conclude that defendant was not denied effective
assistance of counsel based upon defense counsel’s failure to move to
suppress the statement to the Trooper (see People v De Mauro, 48 NY2d
                                 -2-                          1139
                                                         KA 13-00264

892, 893-894), or to request a limiting instruction with respect to
that statement (see People v VanDemps, 118 AD3d 1146, 1148, lv denied
23 NY3d 1061).

     Defendant also failed to preserve for our review his contentions
that the evidence is not legally sufficient to support the conviction
(see People v Gray, 86 NY2d 10, 19), and that he was deprived of a
fair trial by the prosecutor’s allegedly improper remarks during
summation (see People v James, 114 AD3d 1202, 1206-1207, lv denied 22
NY3d 1199). 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]). 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 conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). We
further conclude that the court’s Sandoval ruling did not constitute
an abuse of discretion (see People v Stevens, 109 AD3d 1204, 1205, lv
denied 23 NY3d 1043). Finally, the sentence is not unduly harsh or
severe.




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
