| People v Cooper |
| 2009 NY Slip Op 00902 [59 AD3d 1052] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jessie J.Cooper, Appellant. (Appeal No. 2.) |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedSeptember 15, 2003. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a jury trial of criminal possession of a weapon in the third degree (Penal Law §265.02 [former (4)]) and criminal possession of a weapon in the fourth degree (§ 265.01[1]) and, in appeal No. 2, he appeals from a judgment convicting him, following the same jurytrial, of murder in the second degree (§ 125.25 [1] [intentional murder]). We note at theoutset that defendant failed to move for a trial order of dismissal with respect to the intentionalmurder count and thus failed to preserve for our review his challenge to the alleged insufficiencyof the evidence with respect to that count (see People v Gray, 86 NY2d 10, 19 [1995]).In any event, that challenge is without merit. Viewing the evidence in the light most favorable tothe People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), we concludethat "there is [a] valid line of reasoning and permissible inferences [that] could lead a rationalperson to the conclusion reached by the jury on the basis of the evidence at trial" (People vBleakley, 69 NY2d 490, 495 [1987]), i.e., that defendant, acting either as an accomplice oras a principal, intended to kill the victim and either killed him or aided a codefendant in doingso. Contrary to defendant's further contention, for those same reasons the evidence is legallysufficient to establish that, on the day of the murder, defendant possessed the .32 caliber gun thatinflicted the fatal wound and thus was guilty of criminal possession of a weapon in the fourthdegree. Viewing the evidence in light of the elements of the murder count as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict with respect tothat count is against the weight of the evidence, particularly in light of the fact that the trialtestimony presented issues of credibility for the jury to resolve (see generally Bleakley,69 NY2d at 495).
Contrary to the further contention of defendant, he was not denied effective assistance of[*2]counsel based on defense counsel's failure to move for a trialorder of dismissal with respect to the murder count. Because we conclude that the evidence islegally sufficient to support the conviction of that count, defendant has failed to show that themotion, if made, would have been successful (see People v Wright, 41 AD3d 1221 [2007], lv denied 9NY3d 928 [2007]; People v Phelps,4 AD3d 863 [2004], lv denied 2 NY3d 804 [2004]).
As the People correctly concede, however, the evidence is legally insufficient to support theconviction of criminal possession of a weapon in the third degree with respect to the .38 calibergun. Although defendant failed to preserve his contention for our review (see Gray, 86NY2d at 19), we exercise our power to review his contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). There is no evidence that the .38 caliber gunwas operable and, although the People were not required to prove that defendant was aware ofthe gun's operability, they were required to prove under Penal Law § 265.02 (former [4])that it was in fact operable (People v Ansare, 96 AD2d 96, 97-98 [1983], lv denied61 NY2d 672 [1983]). We therefore modify the judgment in appeal No. 1 accordingly.
We reject the further contention of defendant that County Court erred in refusing to suppressthe statements that he made to the police. We note at the outset that defendant improperly relieson evidence presented at trial in support of his contention with respect to the court's pretrialsuppression ruling (see People vPruitt, 6 AD3d 1233 [2004], lv denied 3 NY3d 646 [2004]). The recordestablishes that defendant's statements made to the police at the hospital were spontaneous andwere not the result of police interrogation (see People v Bryant, 59 NY2d 786 [1983],rearg dismissed 65 NY2d 638 [1985]; People v Wearen, 19 AD3d 1133, 1134 [2005], lv denied 5NY3d 834 [2005]). The subsequent statements made by defendant to the police at the PublicSafety Building were made after he had waived his Miranda rights and the court thusproperly refused to suppress them (seePeople v Davis, 27 AD3d 1138, 1139 [2006], lv denied 6 NY3d 847 [2006]).Contrary to the further contention of defendant, the waiver of his Miranda rights was notrendered invalid by virtue of the fact that approximately 13 hours had elapsed before he made hisstatements. " '[W]here a person in police custody has been issued Miranda warnings andvoluntarily and intelligently waives those rights, it is not necessary to repeat the warnings priorto subsequent questioning within a reasonable time thereafter, so long as the custody hasremained continuous' " (People v Plume, 306 AD2d 916, 917 [2003], lv denied100 NY2d 644 [2003]; see People vRosado, 26 AD3d 891, 892 [2006], lv denied 6 NY3d 838 [2006]). Here,defendant does not contend that the custody was not continuous, and we conclude under thecircumstances of this case that the police subsequently questioned defendant within a reasonableperiod of time, inasmuch as the police were simultaneously questioning the codefendants,defendant was allowed to speak with one of the codefendants, he was provided with cigarettesand food and was allowed to use the bathroom, and he was permitted to telephone his mother (see People v Lowin, 36 AD3d1153, 1154-1155 [2007], lv denied 9 NY3d 847 [2007], reconsiderationdenied 878 [2007]; People vPetronio, 34 AD3d 602, 604 [2006], lv denied 8 NY3d 948 [2007]; see alsoRosado, 26 AD3d at 892). The sentence is not unduly harsh or severe. We have examineddefendant's remaining contention and conclude that it is lacking in merit. Present—Centra,J.P., Peradotto, Green and Pine, JJ.