Opinion
2053
October 29, 2002.
Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered May 17, 1995, convicting defendant, after a jury trial, of four counts of murder in the second degree (two counts each of intentional and felony murder), and sentencing him to an aggregate term of 40 years to life, unanimously affirmed.
DONALD J. SIEWERT, for respondent.
EDWARD IRIZARRY, for defendant-appellant.
Before: Mazzarelli, J.P., Buckley, Ellerin, Marlow, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The circumstantial evidence, including physical evidence, evidence of motive, incriminating aspects of defendant's statements to the police, and testimony of witnesses who saw defendant taking the victims' property, clearly established defendant's guilt (see People v. Levine, 65 N.Y.2d 845) . The evidence excluded beyond a reasonable doubt any possibility that only the codefendant was criminally liable for the victims' deaths. Defendant's acquittal as to certain counts does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557). Defendant's statement plainly established that defendant committed robbery as the underlying crime for felony murder.
Defendant's motion to suppress statements was properly denied. Under the totality of circumstances, defendant's will was not overborne and his statements were voluntary (see Arizona v. Fulminante, 499 U.S. 279, 285-288; People v. Anderson, 42 N.Y.2d 35, 38), notwithstanding the interrogating officer's appeal to defendant's religious beliefs, and his use of a deception (see People v. Tarsia, 50 N.Y.2d 1, 11).
Defendant's motion to suppress physical evidence was properly denied. Defendant lacked standing to challenge the search of the portable safe that was stolen from the victims and found by the police in the apartment which defendant shared with the codefendant (see People v. Brown, 244 A.D.2d 348, lv denied 91 N.Y.2d 870; People v. Williams, 173 A.D.2d 663, 664, lv denied 78 N.Y.2d 976). It was defendant's burden to establish at the hearing that he actually had a reasonable expectation of privacy in the safe (People v. Wesley, 73 N.Y.2d 351; People v. Rodriguez, 69 N.Y.2d 159), not that the police should have believed he had such an expectation. In any event, defendant's roommate consented to admit the police to the apartment, told them that both he and defendant used the safe, and gave them permission to look inside the safe and take it. The record also supports the court's finding that the issuance of the warrant for the subsequent search of defendant's apartment complied with all statutory requirements.
We perceive no basis to reduce defendant's sentence.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.