Opinion
2014-05-7
The PEOPLE, etc., respondent, v. XING CHEN, appellant.
Joel B. Rudin, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Michael Brenner of counsel), for respondent.
Joel B. Rudin, New York, N.Y., for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Michael Brenner of counsel), for respondent.
RANDALL T. ENG, P.J., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered December 9, 2011, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's application to reopen the suppression hearing based on the testimony adduced at the trial. The defendant failed to show that additional pertinent facts had been discovered which would have affected the hearing court's determination ( seeCPL 710.40[4]; People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980;People v. Miller, 57 A.D.3d 568, 869 N.Y.S.2d 150;see also Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694). The trial testimony of the police officer who translated the Miranda warnings to the defendant had only minor inconsistencies with his hearing testimony, and the defendant failed to raise more than an issue of credibility ( see People v. Rosa, 231 A.D.2d 534, 536, 665 N.Y.S.2d 668;cf. People v. Velez, 39 A.D.3d 38, 43, 829 N.Y.S.2d 209).
The Supreme Court providently exercised its discretion in denying the defendant's motion to admit his alleged accomplice's statement as a declaration against penal interest ( see People v. Shabazz, 22 N.Y.3d 896, 898, 977 N.Y.S.2d 141, 999 N.E.2d 504;People v. Settles, 46 N.Y.2d 154, 167–170, 412 N.Y.S.2d 874, 385 N.E.2d 612). The statement was “largely exculpatory and made under circumstances which suggest that [it was] intended to minimize [the] declarant's criminal involvement” ( People v. Singh, 47 A.D.3d 733, 734, 849 N.Y.S.2d 606;see People v. Toussaint, 74 A.D.3d 846, 902 N.Y.S.2d 165;People v. Carter, 276 A.D.2d 347, 714 N.Y.S.2d 459). Since the statement was properly excluded as inadmissible hearsay, the defendant's contention that his constitutional right to present a defense was violated is without merit ( see People v. Simmons, 84 A.D.3d 1120, 924 N.Y.S.2d 273;People v. Cepeda, 208 A.D.2d 364, 616 N.Y.S.2d 737).
The Supreme Court properly charged the jury on accessorial liability and transferred intent ( see People v. Slacks, 90 N.Y.2d 850, 660 N.Y.S.2d 863, 683 N.E.2d 769;People v. Fernandez, 88 N.Y.2d 777, 650 N.Y.S.2d 625, 673 N.E.2d 910;People v. Powell, 304 A.D.2d 410, 757 N.Y.S.2d 297;Penal Law § 20.00).
The prosecutor's comments during summation were fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Sanabria, 110 A.D.3d 1010, 973 N.Y.S.2d 326).