| People v Alomar |
| 2008 NY Slip Op 07673 [55 AD3d 617] |
| October 7, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AngelAlomar, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered May 15, 2006, convicting him of criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree (two counts), and reckless endangerment in the firstdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress his oral and writtenstatements to law enforcement officials.
Ordered that the judgment is affirmed.
The County Court's determination that the defendant knowingly waived his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]) was supported by its finding that the testimonyof a police sergeant was more credible than that of the defendant. Such findings "are entitled to greatdeference on appeal and will not be disturbed unless clearly unsupported by the record" (People v Pagan, 23 AD3d 412 [2005];see People v Prochilo, 41 NY2d 759, 761 [1977]).
The County Court also correctly overruled the defendant's objection to the admission into evidenceof several bullet fragments on the ground that the People failed to establish a valid chain [*2]of custody. "A proper chain of custody is developed when there arereasonable assurances in the record that the evidence sought to be admitted is the same item as wasused in the crime and that it is unchanged. As long as these assurances have been established, anydeficiencies in the chain of custody go only to the weight to be given to the evidence" (People vDonovan, 141 AD2d 835, 836-837 [1988] [citations omitted]; see People v Julian, 41NY2d 340, 342-343 [1977]; People v Isaac,40 AD3d 1118 [2007]).
Here, the People established the admissibility of the physical evidence with the testimony of OfficerMichael Brownstein, who removed the six deformed bullets from the driver's side of the complainant'svehicle on the date of the crime, August 15, 2005. Officer Brownstein placed each bullet in its own"film canister" and sealed each canister with red evidence tape upon which he wrote the case number,date, and item number, and secured the six canisters in the evidence room of the Middletown PoliceDepartment. On December 28, 2005 the six canisters were in the same condition when he put them ina box, sealed the box with red tape, and initialed and addressed it to the New York State PoliceLaboratory in Albany. He took the box to an evidence custodian at the State Police Laboratory inNewburgh for the purpose of having it transported to the Albany laboratory for analysis. On February21, 2006 he picked up the box from the Newburgh laboratory. The box and the canisters still bore theoriginal red tape and, in addition, were sealed with white New York State Police evidence tape andmarked with numbers which corresponded to the item numbers he had given each bullet fragment.
Officer Brownstein's testimony gave reasonable assurance that the bullet fragments admitted at trialwere the same ones that he had recovered from the complainant's vehicle on the day of the crime andhad remained unchanged (see People v Julian, 41 NY2d at 343-344; People vFlores-Ossa, 234 AD2d 315 [1996]). The People's failure to call the individual or individuals whotransported the evidence between the Newburgh and Albany laboratories was relevant only to theweight to be accorded the evidence, not to its admissibility (see People v Battistini, 306 AD2d636, 637-638 [2003]; People v Flores-Ossa, 234 AD2d at 315-316; People v Figueroa,213 AD2d 343 [1995]; People v Evans, 210 AD2d 501, 502 [1994]). In any event, anyerror in admitting the bullet fragments into evidence was harmless, as there was overwhelming evidenceof the defendant's guilt and no significant probability that any error contributed to his conviction (seePeople v Crimmins, 36 NY2d 230, 241-242 [1975]).
The County Court properly denied the defendant's request to submit, to the jury, the charge ofreckless endangerment in the second degree as a lesser included offense of reckless endangerment inthe first degree. Given the evidence that the defendant fired six shots into an occupied vehicle, therewas no reasonable view of the evidence that he committed the lesser offense but not the greater(see CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63-64 [1982]; People vSmith, 234 AD2d 997 [1996]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.