Wednesday, September 24, 2008

In rejecting the Defendant's contention that he was deprived of a fair trial based on alleged misconduct by the prosecutor in cross-examining defendant's witnesses, the Court, in People v Alexander, 2008 NY Slip Op 04163 [4th Dept 5/2/2008] held that
Defendant's contention with respect to three of the allegedly improper questions is not preserved for our review inasmuch as defendant made only general objections to those questions (see generally People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631), and we decline to exercise our power to review defendant's contention concerning those three questions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude that the court properly denied defendant's request for a mistrial based on two other allegedly improper questions. The court sustained defendant's objections to those questions and gave curative instructions with respect to them, and "the jury is presumed to have followed" those curative instructions (People v Duvall, 260 AD2d 183, 184, lv denied 93 NY2d 924; see also People v Davis, 58 NY2d 1102, 1103-1104). The remaining allegedly improper questions concern the prosecutor's cross-examination of defendant, and "[i]t does not appear on the record before us that the conduct of the prosecutor during [that] cross-examination . . . was intended merely to harass, annoy or humiliate defendant . . . Rather, it appears that the cross-examination was intended to place defendant in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise [the facts]" (People v Brent-Pridgen, 48 AD3d 1054, 1055 [internal quotation marks omitted]). Defendant failed to preserve for our review his further contention that he was [*3]deprived of a fair trial by prosecutorial misconduct during summation (see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any event, "that . . . contention is without merit inasmuch as the prosecutor's comments were either a fair response to defense counsel's summation or were fair comment on the evidence" (People v Green, 48 AD3d 1245, 1245-1246; see People v Williams, 43 AD3d 1336; see generally People v Halm, 81 NY2d 819, 821).

In the same decision the Court rejected an attack on the voluntariness of the confession by citing People v Warney, 299 AD2d 956, 957, 2002 N.Y. Slip Op. 08487,
We reject the contention of defendant that the verdict is against the weight of the evidence (see generally id.). "Issues with respect to the credibility of prosecution witnesses concerning the voluntariness of the confession were for the jury to decide, and there is no basis in the record to disturb the jury's resolution of those issues' " (People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633; see People v Sanchez, 267 AD2d 960, lv denied 94 NY2d 906).

Why does that case seem like an odd one to cite in rejecting a challenge to a confession? Perhaps because Douglas Warney's confession was the false product of police misconduct and, after his conviction was affirmed and after he spent 10 years in prison, DNA testing, resisted by the Monroe County District Attorney proved his innocence and the falsity of his confession. Also see this New York Times article.

In Mr. Alexander's case, the fact that he had been interrogated for 9 hours prior to giving a statement was not dispositive, since
the record establishes that there were several breaks in the interrogation during which defendant was left alone, and there is no indication that he sought to end the interrogation, or that he requested food or water, or to use the bathroom (see People v Whitten, 183 AD2d 865, lv denied 81 NY2d 849). The record further establishes that defendant was advised of his Miranda rights a second time and signed a written waiver immediately before signing the statement.

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