Opinion
2015-05-13
The PEOPLE, etc., respondent, v. Mark WALLACE, appellant.
Petito & Petito, LLP, Poughkeepsie, N.Y. (Bruce A. Petito of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Petito & Petito, LLP, Poughkeepsie, N.Y. (Bruce A. Petito of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered May 16, 2013, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Greller, J.), 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 County Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. The credibility determinations of the County Court, which saw and heard the witnesses at the suppression hearing, are entitled to great deference on appeal and should not be disturbed unless clearly unsupported by the record ( see People v. Bennett, 57 A.D.3d 912, 870 N.Y.S.2d 421; People v. Duggins, 1 A.D.3d 450, 766 N.Y.S.2d 702, affd. 3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942). Here, the defendant's statements, although made before being informed of his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), were spontaneous and were “not triggered by any police questioning or other conduct which reasonably could have been expected to elicit a declaration from him” (People v. Barley, 82 A.D.3d 996, 996, 919 N.Y.S.2d 86 [internal quotation marks omitted]; see People v. Henderson, 57 A.D.3d 562, 564–565, 868 N.Y.S.2d 299; People v. Whyte, 47 A.D.3d 852, 853, 850 N.Y.S.2d 184). Moreover, the record supports the County Court's determinations that the police had reasonable suspicion to pursue the defendant ( see People v. Woods, 98 N.Y.2d 627, 628–629, 745 N.Y.S.2d 749, 772 N.E.2d 1107; People v. Holland, 4 A.D.3d 375, 376, 770 N.Y.S.2d 872; People v. Sharpe, 259 A.D.2d 639, 687 N.Y.S.2d 652), and that the reasonable suspicion ripened into probable cause to place him under arrest ( see People v. Cotsifas, 100 A.D.3d 1015, 954 N.Y.S.2d 219; People v. Shaw, 83 A.D.3d 1101, 922 N.Y.S.2d 171; People v. Madrid, 52 A.D.3d 530, 531, 859 N.Y.S.2d 717; People v. Butler, 293 A.D.2d 686, 687, 741 N.Y.S.2d 113; People v. Yizar, 196 A.D.2d 517, 518, 600 N.Y.S.2d 749). Contrary to the defendant's contention, the notice provided pursuant to CPL 710.30 was sufficient, as it informed the defendant of the sum and substance of his statements sought to be introduced at trial ( see People v. Mais, 71 A.D.3d 1163, 1166, 897 N.Y.S.2d 716; People v. Carter, 44 A.D.3d 677, 678, 843 N.Y.S.2d 381; People v. Coleman, 256 A.D.2d 473, 474, 682 N.Y.S.2d 402).
The defendant's contention that the County Court should have suppressed certain physical evidence is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Walters, 120 A.D.3d 1272, 1273, 992 N.Y.S.2d 124; People v. Vann, 92 A.D.3d 702, 938 N.Y.S.2d 182). In any event, this contention is without merit ( see People v. Wade, 137 A.D.2d 638, 638–639, 524 N.Y.S.2d 519; People v. Williams, 123 A.D.2d 652, 653, 506 N.Y.S.2d 917; People v. Brown, 40 A.D.2d 527, 527–528, 333 N.Y.S.2d 791).
Contrary to the defendant's contention, the County Court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413) reflected a proper balance between the prejudicial effect of his prior convictions and their probative value on the issue of his credibility. The defendant's prior convictions bore directly upon his credibility and willingness to place his interests above those of society. These convictions were not so remote in time as to mandate preclusion, given the length of the defendant's incarceration between these convictions and the trial of this matter ( see People v. McLaurin, 33 A.D.3d 819, 820, 826 N.Y.S.2d 279; People v. Mack, 6 A.D.3d 551, 775 N.Y.S.2d 345; People v. Peterson, 262 A.D.2d 502, 503, 693 N.Y.S.2d 154). Further, in prohibiting the prosecutor from eliciting the underlying facts of the defendant's earlier convictions, the County Court avoided any undue prejudice to the defendant ( see People v. Rosado, 115 A.D.3d 884, 885, 982 N.Y.S.2d 364; People v. Thompson, 99 A.D.3d 819, 951 N.Y.S.2d 754; People v. Myron, 28 A.D.3d 681, 683, 814 N.Y.S.2d 198).
The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430; People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61). 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 ( seeCPL 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 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 evidence presented to the grand jury was legally insufficient is not reviewable on this appeal, since the defendant's guilt was proven beyond a reasonable doubt ( seeCPL 210.30[6]; People v. Flowers, 95 A.D.3d 1233, 1234, 945 N.Y.S.2d 701; People v. Oliver, 87 A.D.3d 1035, 1037, 929 N.Y.S.2d 182).
The defendant contends that the prosecutor's peremptory challenges to prospective jurors based on race violated his rights under the Equal Protection Clause of the 14th Amendment to the United States Constitution ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). However, this contention is unpreserved for appellate review as to certain jurors challenged prior to the challenge to Juror No. 18 in the second round, as defense counsel never requested explanations for the challenges exercised by the prosecutor regarding those jurors ( seeCPL 470.05[2]; People v. James, 99 N.Y.2d 264, 271, 755 N.Y.S.2d 43, 784 N.E.2d 1152; People v. Garris, 99 A.D.3d 1018, 1020, 952 N.Y.S.2d 634; People v. Lugo, 69 A.D.3d 654, 893 N.Y.S.2d 173). In any event, these Batson challenges were properly denied because the defendant failed to meet his burden of demonstrating a prima facie case of discrimination ( see People v. Zapata, 98 A.D.3d 539, 540, 949 N.Y.S.2d 175; People v. Nunez, 229 A.D.2d 598, 646 N.Y.S.2d 38). As to Juror No. 18, the defendant's counsel sought an explanation for the prosecutor's peremptory challenge. After the County Court, in effect, found that the defendant established that the prosecutor's explanation was pretextual, it granted defense counsel's specific request for an additional peremptory challenge as relief. The defendant's counsel did not object or challenge the court's determination not to seat Juror No. 18. As a result, to the extent that the defendant contends on appeal that Juror No. 18 should have been seated, that contention is waived ( cf. People v. Lebron, 236 A.D.2d 423, 424, 653 N.Y.S.2d 615).
Contrary to the defendant's contention, the County Court properly allowed the prosecutor to elicit testimony relating to suspected check fraud and a related 911 emergency telephone call. The challenged evidence was properly admitted to provide background information as to why the police pursued and confronted the defendant ( see People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014; People v. Morris, 89 A.D.3d 1112, 933 N.Y.S.2d 598, affd. 21 N.Y.3d 588, 976 N.Y.S.2d 682, 999 N.E.2d 160; People v. Johnson, 76 A.D.3d 1103, 1104, 908 N.Y.S.2d 247; People v. Jenkins, 49 A.D.3d 780, 853 N.Y.S.2d 629). Moreover, the County Court alleviated any potential prejudice to the defendant by properly instructing the jury as to the limited purpose of the evidence ( see People v. Tosca, 98 N.Y.2d at 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014; People v. Morris, 89 A.D.3d at 1113, 933 N.Y.S.2d 598; People v. Holden, 82 A.D.3d 1007, 1008, 918 N.Y.S.2d 773).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).