| People v Timmons |
| 2008 NY Slip Op 07024 [54 AD3d 883] |
| September 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Timmons, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and MerriTurk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy,J.), rendered April 4, 2000, convicting him of murder in the first degree (three counts), andaggravated criminal contempt, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing, of those branches of the defendant's omnibus motion whichwere to suppress his statements to law enforcement authorities and physical evidence.
Ordered that the judgment is affirmed.
The counts of the indictment charging the defendant with murder in the first degree were notduplicitous, as each of the counts charged the defendant with a single crime (see CPL200.30 [1]; Penal Law § 125.27 [1] [a] [viii]). Nor were the counts of the indictmentcharging the defendant with murder in the first degree multiplicitous. The same crime was notcharged in more than one of the counts (see People v Saunders, 290 AD2d 461 [2002];People v Taylor, 190 Misc 2d 124 [2002]).
The Supreme Court properly denied those branches of the defendant's omnibus motion whichwere to suppress his statements to law enforcement authorities and physical evidence. The policewere confronted with an emergency situation in which there was an immediate need for theirassistance for the protection of life, the search was not motivated by an intent to arrest and seizeevidence, and there was a reasonable basis, approximating probable cause, to associate theemergency with the area to be searched (see People v Mitchell, 39 NY2d 173 [1976],cert denied 426 US 953 [1976]; People v Desmarat, 38 AD3d 913, 914-915 [2007]). In this case,the police were investigating a report of an assault in progress. Notwithstanding the repeatedknocking at the door of the subject apartment by the police, no one responded. Moreover, thepolice heard the sound of either a television or a stereo being raised and lowered, indicating thatsomeone was in the subject apartment. Accordingly, the subsequent action by the police inforcibly opening the door of the apartment did not warrant the suppression of evidence.
Moreover, the Supreme Court correctly determined that the defendant's statements werevoluntarily made, despite the fact that he was experiencing pain from an injured wrist (seePeople v Hughes, 280 AD2d 694, 695 [2001]; People v Ragin, 224 AD2d 642[1996]). The credibility determinations of the Supreme Court, which saw and heard the witnessesat the suppression hearing, are entitled to great weight on appeal, and will not be disturbed unlessthey are unsupported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]; People v Stevens, 44 AD3d 882[2007]). The determination of the Supreme Court that the defendant's statements were madevoluntarily has ample support in the record.
The Supreme Court correctly permitted the prosecutor to present evidence of the defendant'sprior conviction of crimes involving domestic violence committed against his wife, who was oneof the murder victims. The evidence was introduced to establish the defendant's motive, relevantbackground information to assist the jury in understanding the relationship between thedefendant and his wife, and to explain why an order of protection had been issued (see Peoplev Alvino, 71 NY2d 233, 242 [1987]; People v Molineux, 168 NY 264, 297-305[1901]; People v Westerling, 48AD3d 965 [2008]; People vWlasiuk, 32 AD3d 674, 676-677 [2006]; People v James, 19 AD3d 616 [2005]).
The defendant's contention that the verdict of guilt is not supported by legally sufficientevidence is unpreserved for appellate review, as he specifically declined to move to dismiss thecharges at the close of the prosecution's evidence and at the end of the case (see CPL470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, resolution of issues of credibility is primarily a matter to bedetermined by the jury, which saw and heard the witnesses, and its determination should beaccorded great deference on appeal (seePeople v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]). 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]). We note that the prosecution was not required to provethe defendant's motive for committing the murders, as motive is not an element of the crime ofmurder (see People v Caban, 5NY3d 143, 154 [2005]).
The defendant's intent to commit the murders may be inferred not only from his conduct, butby the surrounding circumstances (seePeople v Smith, 35 AD3d 635 [2006]).
The defendant's contention that his statements were obtained in violation of his right tocounsel is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event,cannot be determined on this record.
The defendant's contention regarding jury selection is without merit. The defendant'sremaining contentions are unpreserved for appellate review (see CPL 470.05 [2]), and inany event, are without merit. Mastro, J.P., Dillon, Eng and Belen, JJ., concur.