SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1269
KA 04-02509
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CHARLES L. ADAMS, DEFENDANT-APPELLANT.
KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KELLEY PROVO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered September 8, 2004. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree and criminal possession of a weapon in the third 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 murder in the second degree (Penal Law § 125.25
[1]) and criminal possession of a weapon in the third degree (§ 265.02
[former (4)]). Defendant contends that Supreme Court erred in
refusing to suppress his statements to the police as the fruit of an
allegedly unlawful arrest. Even assuming, arguendo, that defendant
preserved that contention for our review by moving to suppress the
statements on that ground, we conclude that he abandoned his
contention by failing to seek a ruling on that part of his omnibus
motion and by failing to object to the admission in evidence of his
statements at trial on that ground (see People v Anderson, 52 AD3d
1320, lv denied 11 NY3d 733; see also People v Bigelow, 68 AD3d 1127,
lv denied 14 NY3d 797). We reject the further contention of defendant
that the court erred in refusing to suppress his written statement on
the ground that it was involuntarily made. The 17-year-old defendant
was afforded, at his request, several opportunities to speak with his
mother prior to making the statement, and “[t]he fact that
defendant[’s mother] gave testimony [at the suppression hearing] that
conflicted with that of the police officers presented an issue of
credibility for the court, which had the opportunity to observe and
assess the witnesses” (People v Towndrow, 236 AD2d 821, 822, lv denied
89 NY2d 1016; see generally People v Lewis, 277 AD2d 1010, 1011, lv
denied 96 NY2d 736).
-2- 1269
KA 04-02509
We reject defendant’s contention that the court abused its
discretion in allowing the People to present the limited testimony of
a witness who observed defendant the morning after the murder (see
generally People v Odom, 53 AD3d 1084, 1087, lv denied 11 NY3d 792).
Further, defendant’s contention with respect to the allegedly improper
comment of the prosecutor on summation concerning that testimony is
not preserved for our review because defendant failed either to object
to the court’s curative instruction following that comment or to
request a mistrial, and thus “the curative instruction[] must be
deemed to have corrected [any] error to the defendant’s satisfaction”
(People v Heide, 84 NY2d 943, 944). We decline to exercise our power
to review defendant’s contention 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 further contention that the court erred
in failing to charge the jury on the defense of temporary lawful
possession of a weapon (see People v Lawrence, 28 AD3d 1123, lv denied
6 NY3d 896). Contrary to defendant’s contention, he was not denied
effective assistance of counsel based on defense counsel’s failure to
request that charge, inasmuch as the conduct of defendant was
inconsistent with his claim of temporary lawful possession (see People
v Banks, 76 NY2d 799, 801; People v Smith, 63 AD3d 1655, lv denied 13
NY3d 839; see generally People v Caban, 5 NY3d 143, 152).
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court