Opinion
2013-04742, Ind. No. 1071/12.
04-13-2016
The PEOPLE, etc., respondent, v. Emania SHEPARD, appellant.
Alan Katz, Garden City Park, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Michael J. Balch of counsel), for respondent.
Alan Katz, Garden City Park, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Michael J. Balch of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, ROBERT J. MILLER and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Nassau County (Delligatti, J.), rendered April 22, 2013, convicting him of burglary in the second degree, burglary in the third degree (4 counts), grand larceny in the fourth degree (5 counts), and petit larceny (10 counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Ayres, J.), after a hearing pursuant to a stipulation in lieu of motions, of the suppression of identification testimony, physical evidence, and the defendant's statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The evidence presented at a suppression hearing established that on the afternoon of January 31, 2012, the defendant was seen taking a cellphone from an unlocked car parked in a commercial area of Lynbrook. An employee of the car's owner observed the defendant reaching into the car, confronted the defendant, and restrained him until the police arrived, at which time he was arrested. The defendant was found to be in possession of merchandise from a nearby clothing store and car keys taken from a nearby insurance brokerage office. The defendant was taken to the local police station, where he made statements inculpating himself in connection with crimes at those three locations. He also admitted to taking part in criminal activity in recent incidents at other locations including a health club in Jericho, a music store in Baldwin, a residence in Rockville Centre, and a doctor's office in East Meadow. A security guard of a motel located next to the health club viewed a police-arranged photo array, from which he identified the defendant as a resident of the motel. Several weeks earlier, an owner of the health club had shown the security guard a photograph of the defendant, which he captured from the health club's surveillance camera. At that time, the security guard confirmed that the person in the photograph was a resident of the motel.
The hearing court properly denied suppression of evidence regarding the police-arranged photo array and the security guard's in-court identification of the defendant, upon finding that the identification of the defendant from the photo array was merely confirmatory and not unduly suggestive (see People v. Jacobs, 65 A.D.3d 594, 595, 884 N.Y.S.2d 656 ; People v. Andrews, 30 A.D.3d 434, 435, 818 N.Y.S.2d 110 ; cf. People v. Coleman, 73 A.D.3d 1200, 1202–1203, 903 N.Y.S.2d 431 ).
The hearing court also properly denied suppression of physical evidence seized incident to the defendant's lawful arrest (see People v. Verges, 120 A.D.3d 1028, 1029, 991 N.Y.S.2d 766 ; People v. Bell, 82 A.D.3d 997, 998, 919 N.Y.S.2d 76, mod. 21 N.Y.3d 915, 966 N.Y.S.2d 773, 988 N.E.2d 1285 ; People v. Freeman, 283 A.D.2d 518, 724 N.Y.S.2d 487 ; People v. Pagan, 184 A.D.2d 738, 585 N.Y.S.2d 453 ), as well as the defendant's statements to law enforcement officials which were made following the administration of Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and his knowing and voluntary waiver thereof (see People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99 ; People v. Rushion, 26 A.D.3d 448, 808 N.Y.S.2d 912 ).
The admission of evidence of prior convictions for the purpose of impeachment is within the discretion of the trial court, which must weigh the probative value of the defendant's prior crimes on the issue of credibility against the potential prejudice to the defendant (see People v. Rahman, 46 N.Y.2d 882, 883, 414 N.Y.S.2d 683, 387 N.E.2d 614 ; People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; People v. Cruz, 21 A.D.3d 967, 801 N.Y.S.2d 65 ; People v. Hines, 3 A.D.3d 580, 771 N.Y.S.2d 164 ; People v. Williams, 292 A.D.2d 474, 475, 740 N.Y.S.2d 348 ; People v. Forino, 287 A.D.2d 519, 731 N.Y.S.2d 81 ). Here, the County Court's Sandoval ruling was a provident exercise of discretion, as the court weighed the relevant factors and struck an appropriate balance (see People v. Vetrano, 88 A.D.3d 750, 930 N.Y.S.2d 275 ; People v. Clarke, 265 A.D.2d 566, 696 N.Y.S.2d 879 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant was guilty of burglary in the second degree when he knowingly entered or remained unlawfully in a dwelling with intent to commit a crime therein (see Penal Law § 140.25[2] ; People v. Hammon, 47 A.D.3d 644, 645, 850 N.Y.S.2d 474 ); that he was guilty of burglary in the third degree (4 counts) when he knowingly entered or remained unlawfully in buildings with intent to commit crimes therein (see Penal Law § 140.20 ; People v. Betancourt, 68 N.Y.2d 707, 506 N.Y.S.2d 310, 497 N.E.2d 677 ; People v. Alsaifullah, 96 A.D.3d 1103, 946 N.Y.S.2d 273 ; Matter of Tyshawn J., 304 A.D.2d 331, 757 N.Y.S.2d 38 ; People v. Shurn, 69 A.D.2d 64, 68, 418 N.Y.S.2d 445 ); that he was guilty of grand larceny in the fourth degree (5 counts) when he forcibly stole property, the value of which, in each instance, exceeded $1,000, or was a credit or debit card (see Penal Law § 155.30[1], [4] ); and that he was guilty of petit larceny (10 counts) (see Penal Law § 155.25 ). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5 ] ), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the credible evidence (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Cusimano, 47 A.D.3d 725, 848 N.Y.S.2d 886 ; People v. Simmons, 31 A.D.3d 1051, 1053, 818 N.Y.S.2d 859 ).
The County Court providently exercised its discretion in denying the defendant's request for an adverse inference charge with respect to a surveillance video of one of the charged burglaries that was not submitted into evidence (see People v. Wallace, 106 A.D.3d 1034, 1035, 965 N.Y.S.2d 198 ).
The defendant's remaining contention is without merit.