| People v Ramirez |
| 2007 NY Slip Op 07753 [44 AD3d 442] |
| October 16, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hector Ramirez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J., at hearing; Bonnie G.Wittner, J., at jury trial and sentence), rendered June 16, 2005, convicting defendant of attemptedmurder in the second degree, burglary in the first degree, attempted rape in the first degree,assault in the second degree, and two counts of sexual abuse in the first degree, and sentencinghim, as a persistent violent felony offender, to an aggregate term of 37 years to life, unanimouslyaffirmed.
The suppression court had discretion to reopen the suppression hearing, before rendering adecision, in order to allow the prosecutor to elicit additional evidence (People v Cestalano, 40 AD3d 238[2007]). Furthermore, the court properly exercised such discretion, since the additional evidencewas directly relevant to probable cause (see People v Suphal, 7 AD3d 547 [2004], lv denied 3NY3d 682 [2004]) and tended to clarify a matter the court had misapprehended (see People vTirado, 266 AD2d 130 [1999], lv denied 94 NY2d 867 [1999]). Furthermore, therewas no risk of tailoring, bad faith by the People or prejudice to defendant (see People vWidgeon, 303 AD2d 330 [2003], lv denied 100 NY2d 589 [2003]).
The court properly declined to suppress any of the various fruits of defendant's arrest, sincethe evidence established probable cause. While the descriptions provided by the multiplewitnesses were in some respects different from each other, and from defendant's actualappearance, these discrepancies were insignificant in light of the circumstantial evidence thatalso contributed to the probable cause possessed by the arresting officer (see e.g. People v Santos, 41 AD3d 324[2007]). This included evidence that defendant, when found and arrested on the premises wherethe crime had occurred that day, had a scratch on his face, and that the victim had reportedscratching her assailant's face.
The court properly exercised its discretion in its rulings regarding defendant's efforts tointroduce a videotape of a television program, and these rulings did not deprive him of a fair trialor the right to present a defense (see Crane v Kentucky, 476 US 683, 689-690 [1986];compare Chambers v Mississippi, 410 US 284 [1973]). Defendant was convicted ofdragging a [*2]13-year-old patient out of her hospital room andbrutally attacking her. A hospital surveillance videotape depicted defendant entering the pediatricarea of the hospital at 7:23 a.m. The victim recalled that at the time of the attack she had beenwatching a certain news program, and that her assailant entered her room, watched the sportssegment of the program, and then attacked her. On the morning that the court intended to chargethe jury, defendant produced a videotape of the television program, in which a clock appears onthe screen and shows that the sports segment aired at 7:19 a.m. Defendant offered this tape in aneffort to show that he was not the perpetrator, because he allegedly did not arrive in the pediatricarea until 7:23 a.m.
Under the circumstances of the case, the court properly ruled that the tape was notself-authenticating, and properly refused to receive it in evidence without authentication as to theaccuracy of the time depicted. This ruling was not hypertechnical, because, as indicated above,this tape had no relevance, and would have been very misleading, unless the time appearing onthe screen was precisely correct (see People v Shelley, 103 Misc 2d 1087, 1089 [AppTerm, 2d Dept 1980] [in a case turning on the precise time of an event, "if the People intended torely on the (radio) broadcast to verify the exact time, proof should have been submitted as to theaccuracy of the station's time check"]).
We also find that the court properly exercised its discretion in denying defendant's request fora continuance in order to attempt to authenticate the tape (see People v Foy, 32 NY2d473, 476 [1973]). The request was made very late in the trial and would have caused significantdelay. Furthermore, defendant was only seeking to obtain some sort of letter of authenticityinstead of a live witness, and such a letter would not necessarily have been sufficient toauthenticate the tape.
In any event, the television videotape was not critical to defendant's defense. Even assumingthat the tape accurately shows that the sports segment aired at 7:19 a.m., this would hardlyexclude defendant as the perpetrator. There are other plausible explanations, including that thevictim was mistaken in her recollection of what was on television at the time in question, or thatthe clock feature on the hospital surveillance video had not been set correctly.
Were we to find that the court erred in excluding the tape or in denying the continuance, wewould find such errors to be harmless beyond a reasonable doubt. To describe the evidence inthis case as overwhelming would be an understatement, given the multiple witnessidentifications, as well as DNA, fingerprint and other circumstantial evidence that conclusivelyestablished defendant's identity as the assailant.
The court properly imposed consecutive sentences for defendant's separate and distinctsexual acts (see Penal Law § 70.25 [2]; People v Laureano, 87 NY2d 640,643 [1996]). The sexual abuse, during which defendant viciously punched the victim as he heldher against a wall and after which she passed out, occurred in one part of a room. When sheawoke, defendant had pulled down her pants and straddled her, while she was on the floor inanother part of the room, and tried to forcibly penetrate her.
Defendant did not preserve his claims that the procedure by which the court determined thathe was eligible for consecutive sentences, and the procedure under which he was sentenced as apersistent violent felony offender, violated the principles of Apprendi v New Jersey (530US 466 [2000]), and we decline to review them in the interest of justice. Were we to review these[*3]claims, we would find each of them without merit (see People v Lloyd, 23 AD3d 296,298 [2005], lv denied 6 NY3d 755 [2005]; Almendarez-Torres v United States,523 US 224 [1998]). Concur—Lippman, P.J., Andrias, Marlow, Buckley and Catterson,JJ.