Opinion
2017–11169 Ind. No. 879/03
11-10-2021
The PEOPLE, etc., respondent, v. Rafael RODRIGUEZ, appellant.
Patricia Pazner, New York, NY (Martin B. Sawyer of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollack of counsel), for respondent.
Patricia Pazner, New York, NY (Martin B. Sawyer of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollack of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., BETSY BARROS, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered August 21, 2017, convicting him of manslaughter in the first degree, aggravated criminal contempt, criminal contempt in the first degree, tampering with physical evidence, and bail jumping in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant's contention that his statements to law enforcement officials should have been suppressed because he was represented by counsel on a pending charge at the time he made the statements cannot be reviewed on direct appeal, since the defendant's failure to raise that issue during a Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ) resulted in an inadequate record (see People v. McLean, 15 N.Y.3d 117, 120–121, 905 N.Y.S.2d 536, 931 N.E.2d 520 ; People v. Owens, 129 A.D.3d 995, 995, 11 N.Y.S.3d 641 ).
Contrary to the defendant's contention, the Supreme Court properly denied his motion to dismiss the indictment on the ground that he was denied his constitutional right to a speedy trial. "In determining whether a defendant's constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to be considered: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of the defendant's defense" ( People v. Metellus, 157 A.D.3d 821, 822, 69 N.Y.S.3d 713 ; see People v. Romeo, 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802 ; People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 ). Here, although there was an extensive delay of approximately 150 months between the victim's disappearance and the defendant's arrest, the People established good cause for the delay, including the defendant's own conduct in leaving the United States, requiring his extradition (see People v. Keating, 183 A.D.3d 595, 596, 123 N.Y.S.3d 160 ; People v. Barba, 135 A.D.3d 950, 951, 23 N.Y.S.3d 381 ). Moreover, the defendant was not incarcerated during any portion of the delay, the nature of the manslaughter charge was very serious, and "there is no indication that the defendant was prejudiced in any way by the delay that he himself caused by his ‘fugitivity’ " ( People v. Barba, 135 A.D.3d at 951, 23 N.Y.S.3d 381, quoting Rayborn v. Scully, 858 F.2d 84, 89 [2d Cir.] ; see People v. Taranovich, 37 N.Y.2d at 447, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; People v. Allen, 134 A.D.3d 730, 731, 20 N.Y.S.3d 583 ).
The defendant's contention that the evidence was legally insufficient to establish his guilt of tampering with physical evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). 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 of tampering with physical evidence beyond a reasonable doubt (see People v. Cardenas, 239 A.D.2d 594, 658 N.Y.S.2d 992 ).
Further, 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 as to all counts 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 contentions that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution (see U.S. Const 6th Amend; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ) were violated by the admission of testimony from a police officer regarding a conversation with a neighbor of the victim, and testimony from the victim's brother regarding a conversation with a person who lived in the victim's apartment, are unpreserved for appellate review, as the defendant did not object to the testimony on that ground (see People v. Currie, 131 A.D.3d 1265, 1266, 16 N.Y.S.3d 866 ). In any event, the testimony at issue " ‘was properly admitted for the relevant nonhearsay purpose[s] of establishing the reasons behind the [officer's] actions, and to complete the narrative of events leading to the defendant's arrest’ " ( People v. Lopez–Miralles, 153 A.D.3d 936, 936, 60 N.Y.S.3d 446, quoting People v. Prince, 128 A.D.3d 987, 987, 10 N.Y.S.3d 146 [internal quotation marks omitted]; see People v. Henry, 183 A.D.3d 607, 608, 121 N.Y.S.3d 623 ).
The defendant's contention that his right to a fair trial was violated by certain remarks made by the prosecutor on summation is unpreserved for appellate review, since the defendant either failed to object to the remarks at issue or made only a general objection, and failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Willis, 165 A.D.3d 984, 985, 85 N.Y.S.3d 230 ). In any event, most of the challenged summation remarks constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom, a fair response to the defense summation, or permissible rhetorical comment (see People v. Rodriguez, 175 A.D.3d 721, 722, 105 N.Y.S.3d 307 ; People v. Carter, 152 A.D.3d 786, 56 N.Y.S.3d 471 ). To the extent some of the challenged remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Reeves, 180 A.D.3d 936, 938, 116 N.Y.S.3d 569 ; People v. Coleman, 148 A.D.3d 717, 718, 48 N.Y.S.3d 478 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
CHAMBERS, J.P., BARROS, WOOTEN and DOWLING, JJ., concur.