People v Herrera

People v Herrera 2017 NY Slip Op 05052 Decided on June 20, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2017
Friedman, J.P., Renwick, Manzanet-Daniels, Kapnick, Gesmer, JJ.
4319 4269/09

[*1]The People of the State of New York, Respondent,

v

Joel Herrera, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (David Crow and Ussula Bentele of counsel), and Kirkland & Ellis LLP, New York (Madelyn Morris of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Diane N. Princ of counsel), for respondent.

Judgment, New York County (Carol Berkman, J. at suppression hearing; A. Kirke Bartley, Jr., J. at first part of trial; Jill Konviser, J. at second part of trial and sentencing), rendered June 26, 2012, convicting defendant of manslaughter in the first degree and gang assault in the first degree, and sentencing him to concurrent terms of 20 years, unanimously affirmed.

The court properly denied defendant's motion to suppress statements and physical evidence. The totality of the chain of information known to the police (see generally People v Shulman, 6 NY3d 1, 26 [2005]), notably including defendant's false explanation for, and attempt to conceal, his bloody condition, provided probable cause for his arrest, notwithstanding the inability of two witnesses to identify him at the scene. Defendant's statements were voluntary under all the circumstances, and the police did not use any tactics designed to overbear defendant's will (see Arizona v Fulminante, 499 US 279, 288 [1991]; People v Anderson, 42 NY2d 35, 41 [1977]).

Defendant did not preserve his claim that he invoked his right of silence, and we decline to review it in the interest of justice. As an alternative holding, we find that when viewed in context, the comments cited by defendant did not constitute unequivocal invocations of the right to remain silent or requests that the interview be terminated (see People v Cole, 59 AD3d 302 [1st Dept 2009], lv denied 12 NY3d 924 [2009]).

The court presiding over the latter portions of the trial (when the first justice became unavailable) providently exercised its discretion in denying defendant's mistrial motion made after the prosecutor asked about defendant's gang nickname. Defendant never answered the question, which was immediately stricken from the record, and the court's instructions were sufficient to avoid any prejudice (see People v McCaa, 16 AD3d 139 [1st Dept 2005], lv denied 5 NY3d 765 [2005]). The record does not establish that the prosecutor's question was a deliberate violation of a Sandoval ruling. Defendant's other argument about the prosecutor's cross-examination is unavailing.

Defendant's general objections failed to preserve his challenges to portions of an expert's testimony and to a related

portion of the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find that defendant opened the door to the challenged matters. We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 20, 2017

CLERK