Opinion
2014-09-17
The PEOPLE, etc., respondent, v. Alphonso BARNES, appellant.
Matthew W. Brissenden, Garden City, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Laurie K. Gibbons of counsel), for respondent.
Matthew W. Brissenden, Garden City, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Laurie K. Gibbons of counsel), for respondent.
PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County, (Robbins, J.) rendered September 5, 2012, as amended September 7, 2012, convicting him of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (St. George, J.), of the suppression of the defendant's statements to law enforcement officials.
ORDERED that the judgment, as amended, is affirmed.
Contrary to the hearing court's determination, the evidence adduced at the suppression hearing was insufficient to establish that the defendant's statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Although the defendant's refusal to sign the Miranda card did not, in itself, preclude the finding of a valid waiver ( see People v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479; People v. Thornton, 87 A.D.3d 663, 664, 928 N.Y.S.2d 358; People v. Saunders, 71 A.D.3d 1058, 1059, 898 N.Y.S.2d 168), the record was devoid of any indication that the defendant clearly understood his Miranda rights as read to him ( see Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098; People v. Sirno, 76 N.Y.2d at 970, 563 N.Y.S.2d 730, 565 N.E.2d 479; cf. People v. Thornton, 87 A.D.3d at 664, 928 N.Y.S.2d 358; People v. Saunders, 71 A.D.3d at 1059, 898 N.Y.S.2d 168; People v. Cartwright, 61 A.D.3d 695, 877 N.Y.S.2d 136; People v. Gill, 20 A.D.3d 434, 798 N.Y.S.2d 507; People v. Rivas, 182 A.D.2d 722, 723, 582 N.Y.S.2d 727; People v. Rivas, 175 A.D.2d 186, 572 N.Y.S.2d 336). Accordingly, the hearing court should have suppressed the defendant's statements. However, the evidence of the defendant's guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Olavarrueth, 74 A.D.3d 1361, 1362, 904 N.Y.S.2d 214). Thus, the admission of these statements into evidence at the defendant's trial was harmless beyond a reasonable doubt.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902; People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Cahill, 2 N.Y.3d 14, 58, 777 N.Y.S.2d 332, 809 N.E.2d 561; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the crimes of which the defendant was convicted was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d at 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902; People v. Cahill, 2 N.Y.3d at 58, 777 N.Y.S.2d 332, 809 N.E.2d 561).
The defendant's objections to the Supreme Court's instructions to the jury on the charges of rape in the first degree and sexual abuse in the first degree are unpreserved for appellate review ( see People v. Devers, 82 A.D.3d 1261, 1263, 920 N.Y.S.2d 177; People v. Pruitt, 74 A.D.3d 1366, 1367, 903 N.Y.S.2d 239; People v. Floyd, 34 A.D.3d 494, 495, 823 N.Y.S.2d 532; People v. Soto, 31 A.D.3d 793, 818 N.Y.S.2d 487; CPL 470.05). In any event, we are satisfied that the court's charge, as a whole, adequately conveyed to the jury the correct principles, and all of the elements of rape in the first degree ( see People v. Gray, 300 A.D.2d 27, 750 N.Y.S.2d 613). Further, although the court erred in including in its charge regarding sexual abuse in the first degree an amendment to the definition of “sexual contact,” which became effective after the acts in question were committed, the error was not “substantial” and did not “seriouslyand prejudicially” undermine the defendant's defense (People v. Lopez, 200 A.D.2d 767, 768, 607 N.Y.S.2d 368).
The defendant's contention that his trial counsel rendered ineffective assistance is without merit ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Henry, 95 N.Y.2d 563, 565–566, 721 N.Y.S.2d 577, 744 N.E.2d 112; People v. Berroa, 99 N.Y.2d 134, 138–139, 753 N.Y.S.2d 12, 782 N.E.2d 1148; People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).