| People v Cabrera |
| 2009 NY Slip Op 03187 [61 AD3d 884] |
| April 21, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alberto Cabrera, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace,J.), rendered September 13, 2006, convicting him of assault in the first degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Zambelli, J.), of that branch of the defendant's omnibus motion which was to suppress hisstatements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that the record developed at the Huntley hearing (seePeople v Huntley, 15 NY2d 72 [1965]) established that his statements were the product of anillegal arrest is unpreserved for appellate review (see People v Park, 43 AD3d 1074, 1075 [2007]; People vMitchell, 303 AD2d 422, 423 [2003]). In any event, it was the defendant's failure to seek aDunaway hearing (see Dunaway v New York, 442 US 200 [1979]), " 'and not afailure of proof by the People that resulted in evidence of the legality of the [arrest] remainingundeveloped' " (People v Fountaine, 269 AD2d 748 [2000], quoting People v Giles,73 NY2d 666, 671 [1989]). This Court may not rely upon the record of the Huntleyhearing to decide the merits of an unlitigated ground for suppression (see People vFountaine, 269 AD2d at 748).
The defendant's contention that the People failed to prove, by legally sufficient evidence,that he acted with the intent to cause serious physical injury is unpreserved for appellate review(see CPL [*2]470.05 [2]; People v Hawkins, 11 NY3d 484,492-493 [2008]; People v Chakrabarty,27 AD3d 657, 658 [2006]). In any event, the evidence was legally sufficient to establishthat the defendant acted with the intent to cause serious physical injury (see People v Camus,255 AD2d 392 [1998]; People v Williams, 240 AD2d 441, 442 [1997]) and that thevictim suffered serious physical injury (see People v Kearney, 24 AD3d 1105, 1106 [2005]; People vRivera, 300 AD2d 168, 168-169 [2002]; People v Tatta, 177 AD2d 674 [1991]).Moreover, in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nonetheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Romero, 7NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]). Upon reviewing the record here, we are satisfied that the verdictof guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant was afforded meaningful representation (see People v Henry, 95NY2d 563, 565 [2000]; People vHaggerty, 48 AD3d 480 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention, raised in point one of his brief, concerning alleged prosecutorialmisconduct, is unpreserved for appellate review, and the defendant's remaining contentions arewithout merit. Spolzino, J.P., Dillon, Florio and Angiolillo, JJ., concur.