| People v Carvalho |
| 2009 NY Slip Op 02157 [60 AD3d 1394] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Antonio R.Carvalho, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 27,2007. The judgment convicted defendant, upon a jury verdict, of robbery in the third degree andgrand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the third degree (Penal Law § 160.05) and grand larceny in the third degree(§ 155.35). Contrary to the contention of defendant, County Court properly refused tosuppress tape-recorded statements that he made to his ex-wife. Although the People may notelicit incriminating statements from a defendant who is represented by counsel, "statementsinduced by nongovernmental entities, acting privately, do not fall within the ambit of thisexclusionary rule" (People v Velasquez, 68 NY2d 533, 537 [1986]). Here, according tothe evidence at the suppression hearing, defendant's ex-wife was not acting as an agent of thepolice, and her statements were not otherwise induced by governmental entities (see id.;People v Jean, 13 AD3d 466, 467 [2004], lv denied 5 NY3d 764, 807 [2005];People v Shabani, 203 AD2d 142 [1994], lv denied 84 NY2d 832 [1994]).
We further conclude that the court properly allowed a prosecution witness to testify withrespect to her identification of defendant from a photo array. "Defendant opened the door to thetestimony of that witness" by attacking the validity of the photo array during his openingstatement (People v Williams, 273 AD2d 824, 826 [2000], lv denied 95 NY2d893 [2000]). Furthermore, defendant was not denied effective assistance of counsel based ondefense counsel's strategic attempt to discredit the pretrial identification of the witness by usingthe photo array (see People v Ofield, 280 AD2d 978 [2001], lv denied 96 NY2d832 [2001]).
Contrary to the further contention of defendant, he has "no constitutional right to a jury trialto establish the facts of his prior felony convictions" (People v Rosen, 96 NY2d 329, 335[2001]; see People v Rivera, 5 NY3d 61, 67 [2005], cert denied 546 US 984[2005]). Furthermore, we conclude that the court did not abuse its discretion in sentencingdefendant as a persistent felony offender based upon defendant's criminal history (see Peoplev O'Connor, 6 AD3d 738, 740-741 [2004], lv denied 3 NY3d 645 [2004]).Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.