| People v South |
| 2008 NY Slip Op 00292 [47 AD3d 734] |
| January 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RaoulSouth, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Smith,J.), rendered June 24, 2002, convicting him of murder in the first degree, upon a jury verdict, andimposing sentence. The appeal brings up for review, inter alia, the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
The defendant improperly relies upon portions of his trial testimony to support his challengeto the police witnesses' testimony on the issue of the voluntariness of his statements. Inasmuch asthe defendant did not testify at the hearing, and a suppression determination must be based uponthe evidence before the hearing court (see People v Gonzalez, 55 NY2d 720, 721-722[1981], cert denied 456 US 1010 [1982]), this Court "is precluded from reviewing trialtestimony in determining whether the hearing court acted properly" (People v Kendrick,256 AD2d 420, 420 [1998] [internal quotation marks omitted]; see People v Feinsod,278 AD2d 335, 336 [2000]). The defendant did not seek to reopen the hearing based on histrial testimony. Insofar as he relies upon that testimony in arguing that his statements were notvoluntarily made, his contention is not properly before this Court (see People v Kendrick,256 AD2d 420 [1998]).
The hearing court properly denied that branch of the defendant's omnibus motion [*2]which was to suppress his statements to the police. "The credibilitydeterminations of a hearing court are entitled to great deference on appeal, and will not bedisturbed unless clearly unsupported by the record" (People v Jenneman, 37 AD3d 736, 737 [2007]; see People v Myers, 17 AD3d 699[2005]; People v Davis, 261 AD2d 411, 412 [1999]). The record supports the hearingcourt's decision to credit the testimony of the police witnesses, which established that thedefendant was advised of his Miranda rights (see Miranda v Arizona, 384 US 436[1966]) and voluntarily waived them prior to making the subject inculpatory statements (seePeople v Blanchard, 279 AD2d 808, 810 [2001]).
The defendant also contends that the testimony of one of the detectives indirectly referred tothe codefendant's statements to the police, and therefore, violated his rights under theConfrontation Clause of the Sixth Amendment of the United States Constitution and constitutedimpermissible bolstering and hearsay. The defendant failed to preserve this contention on any ofthe three grounds asserted (see People v Kello, 96 NY2d 740, 744 [2001]; People vWest, 56 NY2d 662, 663 [1982]). In any event, the content of those statements was neverelicited (see People v Algarin, 15AD3d 411, 412 [2005]).
Contrary to the defendant's contention, the trial court providently exercised its discretion inpermitting the medical examiner to testify as an expert regarding the trajectory of the bullet andthe likely position of the victim when he was shot, since her testimony rested on facts in evidenceand personally known to and described by the doctor herself, as well as her extensive experiencein forensic medicine (see People v Jones, 73 NY2d 427, 430 [1989]; People vShelton, 307 AD2d 370, 371 [2003]; People v Mohsin, 302 AD2d 609, 610 [2003];People v Paun, 269 AD2d 546 [2000]; People v Brockenshire, 245 AD2d 1065,1065-1066 [1997]).
Additionally, the court providently exercised its discretion in denying the defendant's motionpursuant to CPL 330.30 (2) to set aside the verdict based on a juror's affidavit regarding littlemore than the tenor of deliberations (see People v Brown, 48 NY2d 388, 393 [1979];People v Lipman, 254 AD2d 435, 435-436 [1998]; People v Maddox, 139 AD2d597, 598 [1988]; People v Smalls, 112 AD2d 173, 175 [1985]; People v Foti, 99AD2d 517 [1984]). Spolzino, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.