| People v Dearmas |
| 2008 NY Slip Op 01198 [48 AD3d 1226] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RacielDearmas, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered November 16, 2004. The judgment convicted defendant, after a nonjury trial, of robberyin the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial ofrobbery in the second degree (Penal Law § 160.10 [2] [b]) in connection with a bankrobbery. Contrary to the contention of defendant, Supreme Court properly refused to suppress theevidence obtained as the result of the stop of his vehicle inasmuch as the police had reasonablesuspicion to believe that he may have been involved in the robbery that had occurred two daysprior to the stop (see generally People v Glaze, 255 AD2d 932 [1998], lv denied93 NY2d 853 [1999]). Two witnesses gave a detailed description of the vehicle that the policebelieved was used in connection with the robbery, i.e., an early 1980's Mercedes Benz four-doorsedan, dark brown or maroon in color, with out-of-state license plates. Defendant was stopped bythe police while driving a dark maroon 1979 Mercedes Benz with Tennessee license plates. Weconclude that the distinctive nature of the vehicle is a " 'significant factor' " that provided thepolice with reasonable suspicion that defendant may have been involved in the robbery (id.at 933; cf. People vTaylor, 31 AD3d 1141, 1142 [2006]; People v Brooks, 266 AD2d 864 [1999];see generally People v Spencer, 84 NY2d 749, 753 [1995], cert denied 516 US905 [1995]).
Defendant further contends that, because the record does not reflect that a court interpreterwas present when he waived his right to a jury trial, the record fails to establish that his waiver ofthat right was knowing, voluntary and intelligent. We reject that contention (see generally People v Smith, 6 NY3d827, 828 [2006], cert denied 548 US —, 126 S Ct 2971 [2006]). Initially, wenote that defendant does not contend that he did not understand the proceedings (cf. People vFamilia, 273 AD2d 49 [2000], lv denied 95 NY2d 889 [2000]; United States exrel. Negron v State of New York, 434 F2d 386, 388-389 [1970]), and the record establishesthat defendant understood and spoke the English language but preferred to communicate inSpanish (cf. Negron, 434 F2d at 388). Further, defense counsel advised the court thatdefendant decided to waive his right to a jury trial, and defendant responded appropriately whenquestioned by the court with respect to his decision to [*2]waivethat right. We therefore conclude that "[t]he circumstances surrounding the waiver. . . support the conclusion that it was knowing, intelligent and voluntary"(Smith, 6 NY3d at 828).
Viewing the evidence in the light most favorable to the People, we conclude that theevidence is legally sufficient to support the conviction, and we further conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). The record establishes that a DNA sample obtained from a hair recovered from amask found near the crime scene was compared to a DNA sample provided by defendant.Although defendant was not identified as the masked person who robbed the bank, the People'sexpert testified that the chance that the DNA sample recovered from the mask was from a personother than defendant was one in 12.2 trillion. Although the expert was unable to identify the errorrate of the enzyme used to conduct the DNA analysis, we conclude that the court did not fail togive the evidence the weight it should be accorded (see generally id.). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Martoche, Centra, Faheyand Gorski, JJ.