Opinion
2019-01850 Ind. 1530/17
06-02-2021
The People, etc., respondent, v. Kenny Cruz, appellant.
Mark Diamond, New York, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Autumn S. Hughes of counsel), for respondent.
Submitted - April 1, 2021
D66638 M/afa
Mark Diamond, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Autumn S. Hughes of counsel), for respondent.
MARK C. DILLON, J.P. ROBERT J. MILLER FRANCESCA E. CONNOLLY VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Howard E. Sturim, J.), rendered January 10, 2019, as amended January 24, 2019, convicting him of attempted assault in the first degree, assault in the second degree, unlawful imprisonment in the first degree, and criminal possession of a weapon in the third 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, of the suppression of the defendant's statements to law enforcement officials.
ORDERED that the judgment, as amended, is affirmed.
The Supreme Court properly denied suppression of the defendant's statements to law enforcement officials. The defendant's statements, which he made prior to his being given Miranda warnings (see Miranda v Arizona, 384 U.S. 436), were voluntary, spontaneous, and not the result of any police conduct or questioning that reasonably could have been expected to elicit an inculpatory response from him (see People v Demello, 186 A.D.3d 1709, 1709; People v Gunn, 176 A.D.3d 862, 863; People v Stewart, 172 A.D.3d 1247, 1248).
The Supreme Court properly admitted into evidence the victim's statement to her mother under the excited utterance exception to the hearsay rule (see People v Brooks, 71 N.Y.2d 878, 878; People v Brownfield, 187 A.D.3d 1036, 1037; Matter of Nina P. [Giga P.], 180 A.D.3d 1047, 1048; People v Hawkins, 193 A.D.2d 758, 759). Contrary to the defendant's contention, the court did not err in failing to give a special instruction regarding excited utterances (see People v Medina, 53 A.D.3d 1046, 1047; People v Corbin, 284 A.D.2d 408).
The defendant's contention that the video surveillance footage depicting the incident was not properly authenticated is without merit. The People presented sufficient evidence that the video footage accurately represented the events depicted (see People v Grant, 170 A.D.3d 888, 890; People v Martinez, 164 A.D.3d 1260, 1262-1263).
The defendant preserved for appellate review his challenge to the legal sufficiency of the evidence supporting the convictions of attempted assault in the first degree, assault in the second degree, and unlawful imprisonment in the first degree, but failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting the conviction of criminal possession of a weapon in the third degree (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt on each of the convictions beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt on each of the convictions was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The Supreme Court providently exercised its discretion in denying the defendant's request for a missing witness charge regarding the victim. The People established that the victim, who was uncooperative and hostile to the People, was not under their control (see People Singleton, 186 A.D.3d 1412, 1413; People v Gunn, 176 A.D.3d 862, 864).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
DILLON, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.