Opinion
2017-03281 Ind. No. 1839/15
08-21-2019
The PEOPLE, etc., Respondent, v. Edwin GUZMAN, Appellant.
Paul Skip Laisure, New York, N.Y. (White & Case LLP [Raj Gandesha, Louis O'Neill, Sheryn George, and Nicole Lieberman ], of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, Joseph N. Ferdenzi, Bronx and Rachel Houle of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (White & Case LLP [Raj Gandesha, Louis O'Neill, Sheryn George, and Nicole Lieberman ], of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, Joseph N. Ferdenzi, Bronx and Rachel Houle of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
We agree with the hearing court's determination denying that branch of the defendant's omnibus motion which was to suppress the money recovered from the defendant upon his arrest. "The credibility determinations of a hearing court following a suppression hearing are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record" ( People v. Hobson, 111 A.D.3d 958, 959, 975 N.Y.S.2d 682 ; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ). Contrary to the defendant's contention, there is no basis to disturb the hearing court's credibility determinations in this case (see People v. Kelly, 131 A.D.3d 484, 485, 15 N.Y.S.3d 391 ; People v. Glenn, 53 A.D.3d 622, 624, 861 N.Y.S.2d 781 ). At the hearing, Police Officer Sciame, trained and experienced in the detection of narcotics transactions, testified that, on March 17, 2015, he and his partner were in plainclothes in an unmarked police car when he observed the defendant, who was approximately 25 to 30 feet away, give a glassine envelope to a known drug user in exchange for money. The officer also testified that when he and his partner approached the two individuals, his partner observed the known drug user toss the glassine envelope on the ground. The officer's partner then immediately recovered the envelope and informed Sciame of what had just occurred. This testimony, which the hearing court fully credited, established that the police had probable cause to arrest the defendant (see People v. McRay, 51 N.Y.2d 594, 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015 ; People v. McCants, 67 A.D.3d 821, 822–823, 888 N.Y.S.2d 200 ). The police officer's recovery of the money from the defendant was proper as an incident to the defendant's lawful arrest (see People v. McNair, 45 A.D.3d 872, 872, 846 N.Y.S.2d 341 ). The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt 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, 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. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; 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 was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the Supreme Court deprived him of a fair trial because it denied his request to dismiss the entire prospective jury panel is without merit (see People v. Albano, 13 A.D.3d 462, 463, 785 N.Y.S.2d 747 ; People v. Singleton, 226 A.D.2d 565, 566, 641 N.Y.S.2d 548 ).
The defendant waived his right to object that the comments of one prospective juror, who was later excused, tainted or improperly influenced the jury. Defense counsel expressly declined the Supreme Court's offer to provide a curative instruction to the remaining prospective jurors and to explore any bias which such prospective jurors may have developed as a result of the comment (see People v. Armstrong, 138 A.D.3d 877, 879, 29 N.Y.S.3d 475 ).
The defendant's remaining contention is without merit.
CHAMBERS, J.P., COHEN, DUFFY and IANNACCI, JJ., concur.