| People v Rodriguez |
| 2008 NY Slip Op 00039 [47 AD3d 406] |
| January 3, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Quintin Rodriguez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Lawrence H. Cunningham of counsel), forrespondent.
Judgments, Supreme Court, Bronx County (David Stadtmauer, J.), rendered March 24, 2005,convicting defendant, after a jury trial, of burglary in the first degree, and sentencing him to aterm of 11 years, and also convicting him, upon his plea of guilty, of violation of probation, andsentencing him to a concurrent term of one year, unanimously affirmed.
Defendant did not preserve his Confrontation Clause claim. At trial, defendant did not makeany kind of objection to testimony that after the codefendant assisted an officer in locating theweapons used in the crime, the codefendant told the officer those were the firearms "they" hadburied in the snow. On appeal, defendant asserts that he preserved this issue by making aseverance motion, in which he alleged that admission of the codefendant's oral, written andvideotaped statements against the codefendant at a joint trial would violate defendant's right ofconfrontation, citing Bruton v United States (391 US 123 [1968]). Even if we were toconstrue the severance motion as asserting that every one of the codefendant's statements,including the one at issue, would violate defendant's right of confrontation if received at either ajoint or separate trial, we would conclude that, in order to preserve the issue, defendant wasobligated to make this objection before the trial court. "Orderly and fair procedure requires thatthe trial court be given timely and adequate opportunity to rule on and explain claims in thecontext of the trial and trial record which has relevance to the issue advanced." (People vWalker, 71 NY2d 1018, 1020 [1988].) Defendant made his successful severance motionbefore a different justice, many months prior to trial. There is no indication that defendant everalerted the trial court to the existence or contents of the motion. Furthermore, the motion courthad granted severance on the separate ground of antagonistic defenses, and never ruled on theadmissibility of any evidence. Therefore, even if the motion could be deemed to have soughtpreclusion of evidence, the motion court left that issue unresolved, and defendant abandoned it(see People v Graves, 85 NY2d 1024, 1027 [1995]; People v Brimage, 214 AD2d454 [1995], lv denied 86 NY2d 732 [1995]).
We decline to review this unpreserved claim in the interest of justice. Were we to review[*2]it, we would find that the evidence was not testimonial(see Davis v Washington, 547 US 813 [2006]; Crawford vWashington, 541 US 36 [2004]), because, to the extent that there was any policeinterrogation, the declarations were made "under circumstances objectively indicating that theprimary purpose of the interrogation [was] to enable police assistance to meet an ongoingemergency" (Davis, 547 US at 822) that had not abated. Theongoing emergency consisted of the presence of loaded firearms at a playground. Even afterlocating two weapons, the officer needed to confirm that no other weapons were present (see People v Nieves-Andino, 9 NY3d12, 15-16 [2007]; People vBradley, 8 NY3d 124, 127-128 [2006]). In any event, any error in this regard washarmless beyond a reasonable doubt in light of the overwhelming direct and circumstantialevidence of defendant's guilt.
The court's Sandoval ruling balanced the appropriate factors and was a properexercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). To the extent thatdefendant is claiming that the procedure by which the court arrived at its ruling was defective,that claim is unpreserved and we decline to review it in the interest of justice. Were we to reviewthis claim, we would find it without merit, and, further, that any claimed error would have beenharmless. Concur—Andrias, J.P., Nardelli, Buckley and Catterson, JJ.