Opinion
2015-04449 Ind. No. 340/13
03-13-2019
The PEOPLE, etc., Respondent, v. Jeryl GRANT, Appellant.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered May 12, 2015, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Stephen J. Rooney), of that branch of the defendant's omnibus motion which was to suppress statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant was arrested in connection with a shooting that occurred on November 16, 2013. Two police officers interviewed the defendant. After the defendant was shown photographs taken from a surveillance video of him at the scene of the incident, he confessed to being the shooter. Following a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree. The defendant appeals from the judgment of conviction, arguing that the trial court should have suppressed his postarrest statements to law enforcement officials, instructed the jury that false promises had undermined the voluntariness of his statements, and given the jury a missing witness charge regarding the police officer who testified at the suppression hearing but did not testify at trial. The defendant also contends that the surveillance video admitted into evidence was not properly authenticated.
" ‘At a hearing to suppress statements made to law enforcement officials, the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant's statements were voluntary’ " ( People v. Plass, 160 A.D.3d 771, 772, 74 N.Y.S.3d 587, quoting People v. Johnson, 139 A.D.3d 967, 969, 34 N.Y.S.3d 62, affd 31 N.Y.3d 942, 73 N.Y.S.3d 113, 96 N.E.3d 209 ; see People v. Jin Cheng Lin, 26 N.Y.3d 701, 719, 27 N.Y.S.3d 439, 47 N.E.3d 718 ; People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 ; People v. Williams, 62 N.Y.2d 285, 288–289, 476 N.Y.S.2d 788, 465 N.E.2d 327 ). A hearing court's credibility determinations are entitled to deference and will not be disturbed unless they are unsupported by the record (see People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Johnson, 139 A.D.3d at 970, 34 N.Y.S.3d 62 ; People v. Hobson, 111 A.D.3d 958, 959, 975 N.Y.S.2d 682 ; People v. Baliukonis, 35 A.D.3d 626, 627, 829 N.Y.S.2d 112 ).
Here, the defendant contends that law enforcement officials deceived him by implying that making statements against his penal interest would be to his advantage. However, generalized promises of leniency do not create a substantial risk that a defendant might falsely incriminate himself or herself (see People v. Plass, 160 A.D.3d at 773, 74 N.Y.S.3d 587 ; People v. Lugo, 60 A.D.3d 867, 868–869, 874 N.Y.S.2d 587 ; People v. Rufino, 293 A.D.2d 498, 499, 740 N.Y.S.2d 113 ), and there is nothing in this record to suggest that the statements made by the law enforcement officials were of a nature that they would have overborne the defendant's will (see People v. Mateo, 2 N.Y.3d at 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Plass, 160 A.D.3d at 773, 74 N.Y.S.3d 587 ; People v. Johnson, 139 A.D.3d at 969–970, 34 N.Y.S.3d 62 ). Therefore, we agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress statements he made to law enforcement officials.
The Supreme Court's jury charge regarding the voluntariness of the defendant's statements to law enforcement officials, which was in accordance with the language contained in the pattern jury instructions in place at the time, was proper (see CJI2d[NY] Statements [Admissions, Confessions]- Traditional Involuntariness, Expanded Charge on Traditional Voluntariness; People v. Mateo, 2 N.Y.3d at 416 n. 20, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Prospect, 50 A.D.3d 1064, 1065, 856 N.Y.S.2d 644 ; People v. Lubrano, 43 A.D.3d 829, 844 N.Y.S.2d 319 ).
The defendant's contention that the Supreme Court erred in denying his request for a missing witness charge is without merit, as the defendant failed to show that the uncalled witness would provide noncumulative testimony (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867 ; People v. Locenitt, 157 A.D.3d 905, 907, 66 N.Y.S.3d 908 ; People v. Chestnut, 149 A.D.3d 772, 773, 50 N.Y.S.3d 549 ), and defense counsel was permitted to comment during summation on the People's failure to call the witness in question (see People v. Williams, 5 N.Y.3d 732, 734, 800 N.Y.S.2d 360, 833 N.E.2d 695 ; People v. Locenitt, 157 A.D.3d at 907, 66 N.Y.S.3d 908 ; People v. Barber, 133 A.D.3d 868, 870, 22 N.Y.S.3d 63 ).
Contrary to the defendant's contention, the surveillance video was properly admitted in evidence at trial. The surveillance video was authenticated by a detective who testified that he personally copied the store video from the surveillance system onto a mini-DV recorder, verified that the video system was in operation, testified that the date and time on the video appeared to be accurate, and testified to the unaltered condition of the video (see People v. Martinez, 164 A.D.3d 1260, 83 N.Y.S.3d 677 ; People v. Costello, 128 A.D.3d 848, 9 N.Y.S.3d 132 ; People v. Boyd , 97 A.D.3d 898, 899, 948 N.Y.S.2d 450 ; People v. Orlando , 61 A.D.3d 1001, 1002, 878 N.Y.S.2d 185 ).
MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.