SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
August 20, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DEREK MCIVER, DEFENDANT-APPELLANT.
Appeal from a judgment of the Wyoming County Court (Michael F. Griffith, J.), rendered December 16, 2008. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree.
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.
PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND PINE, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25 ). Contrary to the contention of defendant, County Court did not err in refusing to suppress his statement to a police investigator. The testimony of defendant at the suppression hearing that the statement was coerced by correction officers and thus was not voluntary presented a credibility issue that the suppression court was entitled to resolve against defendant (see People v Collins, 302 AD2d 958, lv denied 99 NY2d 653). Here, "[t]he testimony of the [investigator] . . . supports the court's determination that defendant's statement [was] preceded by Miranda warnings and voluntarily made by defendant, without any promises, threats, or coercion on the part of [the correction officers]" (People v Pennick, 2 AD3d 1427, 1428, lv denied 1 NY3d 632).
Contrary to defendant's further contention, 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 conclude that the verdict is not against the weight of the evidence (see People v Livingston, 262 AD2d 786, 787-788, lv denied 94 NY2d 881; see generally People v Bleakley, 69 NY2d 490, 495). Defendant preserved for our review his contention that he was denied a fair trial based on prosecutorial misconduct on summation only with respect to two of the prosecutor's comments (see CPL 470.05 ). In any event, that contention is without merit inasmuch as all of the prosecutor's allegedly improper comments were either a fair response to defense counsel's summation or fair comment on the evidence (see People v Anderson, 52 AD3d 1320, 1321, lv denied 11 NY3d 733).
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