| People v Rhodes |
| 2008 NY Slip Op 02181 [49 AD3d 668] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Rhodes, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback and David Byrneof counsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Orange County (Berry,J.), both rendered January 11, 2006, convicting him of tampering with physical evidence (threecounts) and offering a false instrument for filing in the first degree (three counts), upon a juryverdict, under Orange County indictment No. 602/2005, and murder in the second degree andcriminal possession of a weapon in the third degree, upon a jury verdict, and criminal possessionof marihuana in the second degree and criminal possession of a controlled substance in theseventh degree, upon his plea of guilty, under Orange County indictment No. 103/2005, andimposing sentences. The appeals bring up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress his statements to law enforcementofficials, and the denial, without a hearing, of the defendant's motion to controvert a searchwarrant.
Ordered that the judgments are affirmed.
The defendant correctly contends that his statements to the police made prior to theadministration of Miranda warnings (see Miranda v Arizona, 384 US 436 [1966])should have been suppressed. Considering all the relevant factors, an innocent person in thedefendant's position would not have believed he was free to leave after being taken to the policestation in handcuffs, questioned for about three hours, and asked to give the police his clothingand DNA samples (see People v Macklin, 202 AD2d 445 [1994]). However, the evidenceof the defendant's guilt, without reference to the statements themselves, was overwhelming, andthere is no reasonable possibility that [*2]the alleged error mighthave contributed to the defendant's conviction. Thus, the erroneous admission of these statementswas harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 237-238[1975]).
The defendant's contention that the People failed to establish his guilt of murder in thesecond degree and criminal possession of a weapon in the third degree by legally sufficientevidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,86 NY2d 10, 19-21 [1995]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), and giving the People thebenefit of every reasonable inference which could be drawn from the circumstantial evidenceadduced (see People v Lewis, 64 NY2d 1111, 1112 [1985]; People v Way, 59NY2d 361, 365 [1983]), we find that the evidence was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. 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 [2006]).
The County Court properly denied, without a hearing, the defendant's motion to controvertthe search warrant issued. The defendant failed to make the necessary substantial preliminaryshowing that the warrant was based upon an affidavit containing false statements madeknowingly or intentionally or with reckless disregard for the truth (see Franks vDelaware, 438 US 154 [1978]; People v Alfinito, 16 NY2d 181 [1965]; People v Katharu, 7 AD3d 403[2004]). In any event, apart from the challenged statements, the remaining facts presented to theissuing magistrate were sufficient to establish probable cause for the search of the defendant'shome (see People v Tambe, 71 NY2d 492 [1988]).
The County Court properly admitted into evidence photographs depicting the victim and thecrime scene. The predominantly black and white photographs of the victim's wounds wereadmitted to illustrate and corroborate the testimony of the forensic pathologist who conducted theautopsy (see People v Miller, 170 AD2d 623 [1991]). The photographs were probative asto the essential elements of murder in the second degree and criminal possession of a weapon inthe third degree, since they suggested that the defendant was in possession of a dangerousinstrument and used it with the requisite intent (see People v Walsh, 294 AD2d 519[2002]). Other photographs of the victim and the crime scene were admitted to corroborate thetestimony of other prosecution witnesses. Thus, we cannot conclude that the photographs wereadmitted solely "to arouse the emotions of the jury and to prejudice the defendant" (People vPobliner, 32 NY2d 356, 370 [1973], cert denied 416 US 905 [1974]), or that the trialcourt improvidently exercised its discretion in admitting these photographs into evidence (seePeople v Walsh, 294 AD2d at 520; People v Angulo, 265 AD2d 418 [1999]).
The County Court also properly precluded the defendant from introducing evidence ofthird-party culpability since the proffered evidence was based upon mere speculation and lackedany probative value (see People v Primo, 96 NY2d 351, 357 [2001]; People v Johnson, 4 AD3d 483[2004]).
The defendant's remaining contentions are without merit. Spolzino, J.P., Florio, Angiolilloand Dickerson, JJ., concur.