| People v Graham |
| 2008 NY Slip Op 01382 [48 AD3d 265] |
| February 14, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v RufusGraham, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (James A. Yates, J.), rendered June 24, 2005,convicting defendant, after a jury trial, of burglary in the second degree (seven counts), burglaryin the third degree (five counts), forgery in the second degree, criminal possession of a forgedinstrument in the second degree, and grand larceny in the fourth degree, and sentencing him, as apersistent felony offender, to concurrent terms of 25 years to life, unanimously modified, on thelaw, to the extent of granting defendant's motion to suppress statements, vacating the convictionsfor grand larceny and burglary under counts 17 and 18 (renumbered 15 and 16) of the indictment(relating to an incident at 61 East 77th Street) and remanding for a new trial on those counts, andotherwise affirmed. Order, same court and Justice, entered on or about May 8, 2006, whichdenied defendant's CPL 440 motion to vacate the judgment, unanimously modified, on the facts,to the extent of vacating the convictions under the aforementioned counts and remanding for anew trial.
The court should have granted defendant's suppression motion. After receivingMiranda warnings from one detective, defendant told another detective about eight hourslater that he did not want to talk about any of the burglaries at issue. At this point, the policeshould have ceased interrogation (see People v Ferro, 63 NY2d 316, 322 [1984], certdenied 472 US 1007 [1985]; People v Brown, 266 AD2d 838 [1999], lvdenied 94 NY2d 860 [1999]). Instead, the second detective immediately, and without newwarnings, told defendant that there was video and fingerprint evidence linking him to the crimes;this led defendant to say, "charge me with everything, I did everything." The police commentclearly constituted interrogation and was improper (see People v Kollar, 305 AD2d 295,298 [2003], appeal dismissed 1 NY3d 591 [2004]). Although defendant later asked tospeak to the detective and made the confessions that were admitted at trial, the detective neverreadministered Miranda warnings.
However, with the exception of the counts relating to the burglary at 61 East 77th Street, theerror was harmless (see People v Crimmins, 36 NY2d 230, 237 [1975]). Each of theother crimes was established by fingerprints or other compelling evidence, and there is noreasonable [*2]possibility that the confession contributed to theverdict.
Defendant is also entitled to a new trial, as to these same counts, on the ground set forth inhis CPL 440 motion. We conclude that, at the evidentiary hearing conducted on his motion,defendant established by a preponderance of the evidence (see CPL 440.30 [6]) that thePeople failed to turn over one of defendant's statements (relating to an incident at 145 West 45thStreet) until after the verdict; we thus substitute our own factual finding for that of the motioncourt. This delay violated the People's disclosure obligation under CPL 240.20 (1) (a). Althoughthis statement was not introduced at trial, defendant was prejudiced because the statementcontained material that he could have used for impeachment purposes in challenging thevoluntariness of his statements, both at the suppression hearing and at trial. Nevertheless, asnoted earlier, the admission of defendant's statements was harmless except as to certain counts.Accordingly, defendant is not entitled to any remedy pursuant to his CPL 440.10 motion beyondthe remedy we have granted with respect to his direct appeal.
Defendant's claim that certain counts of the indictment should have been severed isunpreserved, and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits (see e.g.People v Adames, 42 AD3d 328, 329 [2007]). Similarly, we find that counsel did notrender ineffective assistance by failing to move for severance.
The court properly exercised its discretion in adjudicating defendant a persistent felonyoffender, and we perceive no basis for reducing the sentence. We reject defendant's constitutionaland statutory challenges to the court's adjudication procedure. The court expressly stated that itwas basing its adjudication entirely on the constitutionally permissible factors of the instant jury'sfindings, defendant's prior convictions (see Almendarez-Torres v United States, 523 US224 [1998]), and the court's discretionary evaluation of the seriousness of defendant's criminalhistory (see People v Rivera, 5NY3d 61 [2005], cert denied 546 US 984 [2005]). Although defendant argues thatthe statutory scheme requires a court to make additional findings, the sentencing court's findingssatisfied the statute as interpreted by the Court of Appeals (see id. at 70-71; People v Young, 41 AD3d 318,319-320 [2007]). Concur—Lippman, P.J., Tom, Buckley and Gonzalez, JJ.