SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

643 

KA 06-01978 

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

EDWARD KITHCART, DEFENDANT-APPELLANT.

 

LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (William D.

Walsh, J.), rendered February 1, 2006. The judgment convicted

defendant, upon a jury verdict, of murder in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: On appeal from a judgment convicting him following a

jury trial of murder in the second degree (Penal Law § 125.25 [3]

[felony murder]), defendant contends that the evidence is legally

insufficient to establish the underlying felony of rape or attempted

rape. Even assuming, arguendo, that defendant’s motion for a trial

order of dismissal was sufficiently specific to preserve that

contention for our review (see People v Gray, 86 NY2d 10, 19), we

conclude that it is without merit (see People v Washington, 305 AD2d

433, lv denied 100 NY2d 588). Viewing the evidence in light of the

elements of the crime as charged to the jury (see People v Danielson,

9 NY3d 342, 349), we further conclude that the verdict is not against

the weight of the evidence (see generally People v Bleakley, 69 NY2d

490, 495). We reject defendant’s contention that County Court erred

in refusing to suppress statements that he made during a 1992 police

interview. The deception used by the police was not “ ‘so

fundamentally unfair as to deny [defendant] due process’ ” (People v

Camacho, 70 AD3d 1393, 1394, lv denied 14 NY3d 886, 887, quoting

People v Tarsia, 50 NY2d 1, 11), nor did it “ ‘create a substantial

risk that the defendant might falsely incriminate himself’ ” (People v

Andrus, 77 AD3d 1283, 1284, lv denied 16 NY3d 827). 

Defendant failed to preserve for our review his further

contention that the court erred in admitting evidence of his refusal

to provide a blood sample for testing (see generally People v Denison,

300 AD2d 1060; People v Hathaway, 245 AD2d 1066), and we decline to

exercise our power to review that contention as a matter of discretion
-2- 643 

KA 06-01978 

in the interest of justice (see CPL 470.15 [6] [a]). We reject the

contention of defendant that the People’s failure to call the officer

who obtained his statement in 2005 as a witness at the Huntley hearing

rendered the evidence establishing the voluntariness of that statement

insufficient. The People met their “burden of going forward to show

the legality of the police conduct in the first instance” (People v Di

Stefano, 38 NY2d 640, 652), as well as their burden of establishing

that the statement in question was voluntarily made, by presenting the

testimony of another officer who was present when defendant was

advised of his Miranda rights and validly waived them before making

that statement (see People v Witherspoon, 66 NY2d 973, 973-974; People

v Drumm, 15 AD3d 910, lv denied 4 NY3d 853). 

Defendant failed to preserve for our review his further

contention that the court erred in permitting the People to introduce

evidence that defendant invoked his right to remain silent by

terminating the 2005 interview (see People v Murphy, 79 AD3d 1451,

1453). Defendant also failed to preserve for our review his

contention that the court erred in permitting the prosecutor to

comment on such evidence during summation (see People v Lombardi, 68

AD3d 1765, lv denied 14 NY3d 802). “In any event, in light of the

evidence presented, we [conclude] that any such errors [are] ‘harmless

beyond a reasonable doubt’ inasmuch as there is ‘no reasonable

possibility that the error[s] might have contributed to defendant’s

conviction’ ” (Murphy, 79 AD3d at 1453, quoting People v Crimmins, 36

NY2d 230, 237). Defendant’s remaining contentions with respect to the

prosecutor’s alleged misconduct during summation are not preserved for

our review (see CPL 470.05 [2]), and we decline to exercise our power

to review them as a matter of discretion in the interest of justice

(see CPL 470.15 [6] [a]). The court did not abuse its discretion in

denying defendant’s request to discharge defense counsel (see People v

Porto, 16 NY3d 93, 99-101), and the record establishes that defendant

received meaningful representation (see generally People v Baldi, 54

NY2d 137, 147). Finally, defendant failed to preserve for our review

his further contention that the court erred in sentencing him without

the benefit of an adequate presentence report, and we decline to

exercise our power to review that contention as a matter of discretion

in the interest of justice (see People v Diaz, 26 AD3d 768).

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court