| People v Ramos |
| 2007 NY Slip Op 09056 [45 AD3d 702] |
| November 13, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Chauncy Ramos, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (DiBella,J.), rendered November 16, 2004, convicting him of assault in the second degree and criminalpossession of a weapon in the third degree (two counts), after a nonjury trial, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly denied that branch of hismotion which was to suppress his statements to law enforcement officials. The determinationwas based on a finding that the defendant was advised of his Miranda rights (seeMiranda v Arizona, 384 US 436, 444-445 [1966]) before any custodial interrogation and thatthe statements were knowingly, voluntarily, and intelligently made, and also based upon afinding that the defendant did not unequivocally invoke his right to counsel before makingstatements to the police. The credibility determinations of the hearing court are entitled to greatdeference (see People v Lyons, 22AD3d 606 [2005]). Here, the County Court's determination was supported by the record.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond areasonable doubt the defendant's guilt of the crimes of assault in the second degree (seePenal Law § 120.05 [2], [5]) and criminal possession of a weapon in the third degree(see Penal Law § 265.01 [1]). Moreover, [*2]uponthe exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).
Contrary to the People's contention, the defendant's failure to challenge the sentence in theCounty Court did not render his claim unpreserved for appellate review, because a challenge toan unlawful sentence falls outside of the preservation rule (see People v Samms, 95NY2d 52, 54 [2000]; see also People v Morse, 62 NY2d 205, 214 [1984]). Contrary tothe defendant's contention, however, he was properly adjudicated a persistent felony offender forhis conviction on each of the counts of criminal possession of a weapon in the third degreebecause he was previously convicted of two or more felonies, and was imprisoned for thosefelonies before the commission of the present felonies (see Penal Law § 70.10 [1][a], [b] [ii]). Furthermore, the County Court providently exercised its discretion in finding that"the history and character of the defendant and the nature and circumstances of his criminalconduct indicate that extended incarceration and life-time supervision will best serve the publicinterest" (Penal Law § 70.10 [2]).
The defendant's remaining contentions are without merit. Miller, J.P., Ritter, Santucci andBalkin, JJ., concur.