| People v Whyte |
| 2008 NY Slip Op 00552 [47 AD3d 852] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gareth Whyte, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Brian F. Fitzgerald, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered March 1, 2006, convicting him of assault in the first degree and assault in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officials.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials. The credibility determinations of theSupreme Court following a suppression hearing are entitled to great deference on appeal and willnot be disturbed unless clearly unsupported by the record (see People v Baliukonis, 35 AD3d 626, 627 [2006]). Here, thedefendant's initial statement was made prior to his arrest and he was not in custody at the time.Therefore, Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) werenot required at this point (see People vDaniels, 35 AD3d 756, 757 [2006]; People v Bongarzone-Suarrcy, 13 AD3d 385, 386 [2004];People v Beckwith, 303 AD2d 594, 595 [2003]). The Supreme Court properly found thatthe defendant's spontaneous statements, made after a police officer arrested him but beforeMiranda warnings were administered, were not triggered by any police questioning orother conduct which reasonably could have been expected to elicit a declaration from him(see People v Baliukonis, 35 AD3d at 627). The Supreme Court also properly determinedthat the defendant's statements after the Miranda warnings were administered werevoluntarily made after he knowingly [*2]and intelligently waivedhis Miranda rights (see People v Baliukonis, 35 AD3d at 627). Accordingly, theSupreme Court properly denied that branch of the defendant's omnibus motion which was tosuppress his statements to law enforcement officials. Additionally, the defendant, who did notmove to reopen the suppression hearing at trial, improperly relies on trial testimony inchallenging the suppression ruling on appeal (see People v Gonzalez, 55 NY2d 720,721-722 [1981]; People v Crosby,33 AD3d 719, 720 [2006]; People v Brown, 11 AD3d 474, 475 [2004]; People v Gold,249 AD2d 414, 415 [1998]; People v Diaz, 194 AD2d 688, 689 [1993]). In anyevent, insofar as he maintains that his statements should have been suppressed because they wereinconsistent with the victim's trial testimony as to how the assault occurred, such inconsistenciespresented an issue of credibility for the trier of fact to resolve (see e.g. People v Dixson, 21 AD3d566 [2005]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to prove, beyond areasonable doubt, that the defendant was guilty of assault in the first degree (see PenalLaw § 120.10 [2]). The evidence established that the defendant bit off a mass of thevictim's cheek near her left eye, causing permanent scarring, numbness, pain, and partial visionimpairment, and which condition, even after what a plastic surgeon characterized as "successful"surgery, may require additional procedures both to protect the victim's eye and to improve theappearance of her scarring. Thus, the People proved serious and permanent disfigurementsufficient to support the defendant's conviction of assault in the first degree (see PenalLaw § 120.10 [2]; see also Peoplev Lausane, 16 AD3d 523 [2005]; People v Rivera, 268 AD2d 538, 539 [2000];People v Martinez, 257 AD2d 667 [1999]; People v Gadson, 190 AD2d 860, 861[1993]; People v Wade, 187 AD2d 687 [1992]). The evidence also was legally sufficientto prove, beyond a reasonable doubt, that the defendant was guilty of assault in the seconddegree, as he caused the victim to suffer serious and protracted disfigurement (see PenalLaw § 10.00 [10]; § 120.05 [1]). Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633, 644-645 [2006]). Spolzino, J.P., Dillon, Angiolillo andDickerson, JJ., concur.