| People v Gerena |
| 2008 NY Slip Op 02272 [49 AD3d 1204] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Luis Gerena,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), renderedSeptember 21, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree, robbery in the second degree, and burglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofrobbery in the first degree (Penal Law § 160.15 [4]), robbery in the second degree (§160.10 [1]), and burglary in the first degree (§ 140.30 [4]). Defendant contends thatCounty Court erred in refusing to suppress his statements to the police on the ground that he wasunable to understand the Miranda warnings that were given to him in English and thusthat he did not voluntarily waive his Miranda rights. We reject that contention. The courtcredited the testimony of the police that defendant understood the Miranda warnings andresponded with appropriate answers to the questions he was asked. We accord great weight to thedetermination of the suppression court " 'because of its ability to observe and assess thecredibility of the witnesses,' " and we perceive no reason to disturb its determination (Peoplev McConnell, 233 AD2d 867 [1996], lv denied 89 NY2d 987 [1997]).
We further reject defendant's contention that the court erred in refusing to give theidentification charge for one witness identification cases (see CJI2d[NY]Identification— One Witness). As the court properly stated, the charge is used "normallywhen persons don't have knowledge of one another," and that is not the case here. In any event,we note that the court properly charged the jury that the People were required to prove everyelement of the crime beyond a reasonable doubt, "including that the defendant is the person whocommitted the crime" (see People v Whalen, 59 NY2d 273, 279 [1983]; People vBarton, 301 AD2d 747 [2003], lv denied 99 NY2d 625, 1 NY3d 539 [2003]). Wealso reject defendant's contention that the court's jury instructions improperly drew attention todefendant and his statements to the police. Indeed, the charge mirrored the model charge set forthin 1 CJI (NY) 4.06.
Contrary to defendant's further contention, the evidence is legally sufficient to establish thathe used a gun, which is a necessary element of robbery in the first degree and burglary in the firstdegree as charged (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). ThePeople [*2]presented evidence establishing that defendant"consciously display[ed] something that could reasonably be perceived as a firearm" (Peoplev Baskerville, 60 NY2d 374, 381 [1983]). Also contrary to defendant's contention, theevidence is legally sufficient to establish that he forcibly stole property from the victims, which isa necessary element of robbery in the first and second degrees. We reject defendant's furthercontention that the verdict is against the weight of the evidence (see generally Bleakley,69 NY2d at 495).
Defendant was not denied effective assistance of counsel (see generally People vBaldi, 54 NY2d 137, 147 [1981]), and the sentence is not unduly harsh or severe. We furtherconclude that the court properly sentenced defendant as a second felony offender, based on aprior conviction of conspiracy to possess a controlled substance with the intent to distribute it(see 21 USC § 841 [a] [1]; § 846). As the court properly determined, thepredicate felony "is equivalent to a New York felony" (People v Gonzalez, 61 NY2d 586,589 [1984]; see Penal Law § 105.10 [1]; § 220.16 [1]). We have examineddefendant's remaining contentions and conclude that they are lacking in merit.Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.