| People v Cruz |
| 2009 NY Slip Op 00701 [59 AD3d 457] |
| February 3, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseCruz, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Cafferri, and Karen M. Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered November 22, 2005, convicting him of murder in the second degree, criminalpossession of a weapon in the second degree, criminal possession of weapon in the third degree,and tampering with physical evidence (two counts), upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
There was probable cause to arrest the defendant (see CPL 70.10 [2]; People v Tocci, 52 AD3d 541,541-542 [2008]). Furthermore, the credibility determinations of the hearing court, which had theadvantage of hearing and seeing the witnesses, are to be accorded great weight on appeal (seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Stafford, 39 AD3d 774, 775-776 [2007]). Here, there isno basis to disturb the hearing court's determination that the defendant was not interrogated untilafter he knowingly waived his Miranda rights (see Miranda v Arizona, 384 US436 [1966]). Accordingly, that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officials was properly [*2]denied.
Contrary to the defendant's contention, the conduct of the prosecutor and the trial courtrelating to the use of a signed statement by a witness did not violate CPL 60.35 (3).
The defendant contends that the Supreme Court erred in permitting certain expert witnesstestimony. The expert opined that, in a surveillance videotape recorded at the site immediatelyfollowing the subject incident, a blurry area by the defendant's hand did not appear to be ashadow or electronic interference, but rather appeared to be an object the defendant was holdingin his right hand. Any error in permitting that expert testimony was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that the defendantwould have been acquitted absent this testimony (see generally People v Crimmins, 36NY2d 230, 241-242 [1975]).
The defendant failed to establish that he was denied the right to be present at a material stageof the proceeding (see CPL 260.20; People v Velasco, 77 NY2d 469, 473 [1991];People v Bryan, 46 AD3d1219, 1220 [2007]).
The defendant's claim that he was denied his right to the effective assistance of counsel restson matters partially dehors the record, and to that extent, it may not be reviewed on direct appeal(see People v Drago, 50 AD3d920 [2008]; People vGonzalez, 44 AD3d 871 [2007]). Insofar as the claim rests on matters in the record, thedefendant received the effective assistance of counsel (see People v Baldi, 54 NY2d 137[1981]; People v Drago, 50 AD3d920 [2008]).
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, are unpreserved for appellate review and, in any event, are without merit. Fisher, J.P.,Angiolillo, Dickerson and Belen, JJ., concur.