| People v Orlando |
| 2009 NY Slip Op 03547 [61 AD3d 1001] |
| April 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkOrlando, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Sarah Spatt ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (D. Sullivan,J.), rendered August 18, 2005, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Honorof, 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 was convicted of murder in the second degree for causing the death of RobertCalabresse, a bookmaker with whom the defendant placed gambling bets. Within five days of themurder, following a police investigation, the defendant was arrested based on outstanding benchwarrants for prior pending, unrelated, vehicle and traffic charges and to investigate hisinvolvement in the murder. The detectives never questioned the defendant with respect to thosetraffic matters, limiting questioning to the murder allegations after the defendant received andwaived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]). Thedefendant then made incriminating statements about his involvement in the murder.
On appeal, the defendant contends that his inculpatory statements to the police should havebeen suppressed because they were obtained in violation of his right to counsel. Contrary to thedefendant's argument, however, he never sought or requested an attorney prior to his statements,and there was no evidence presented that the police were aware of any prior legal representation,or that he had, in fact, [*2]retained counsel, for the unrelatedtraffic charges (see People v Burdo, 91 NY2d 146, 150 [1997] [statements suppressed aspolice knew about pending charge and related representation]; People v Rogers, 48NY2d 167, 169 [1979]). Since the defendant was not questioned in violation of hisMiranda rights, including his right to counsel, the hearing court properly deniedsuppression of the defendant's statements (see People v Bing, 76 NY2d 331, 350-351[1990]; People v Tyler, 43 AD3d 633, 635 [2007]; People v Middlebrooks, 300AD2d 1142 [2002]; People v Acosta, 259 AD2d 422 [1999]; cf. People v Burdo,91 NY2d at 150).
Contrary to the defendant's contention, the court did not violate his right to confront awitness when it permitted a detective to testify that he told the defendant that a codefendant gavedetails about the killing. "The court properly instructed the jury that the testimony was admittedfor the limited purpose of explaining the detective's actions and their effect on the defendant, andnot for the truth of the codefendant's statement" (People v Ewell, 12 AD3d 616, 617[2004]; see Tennessee v Street, 471 US 409, 413-417 [1985]; People v Reynoso,2 NY3d 820, 821 [2004]; People v Marji, 43 AD3d 961, 962 [2007]; People vBryant, 39 AD3d 768 [2007]).
In addition, during the trial, the court allowed the prosecution to introduce into evidence avideotape from a video surveillance camera of the area where the shooting occurred. Contrary tothe defendant's contention, the prosecution laid a proper foundation for the admission of the tapeinto evidence (see People v Ely, 68 NY2d 520, 527 [1986]). The fact that there wereminor glitches in the tape goes to the weight of the evidence, not its admissibility (see Peoplev Gibbons, 18 AD3d 773 [2005]; People v Jackson, 200 AD2d 856, 858 [1994];People v Apergis, 200 AD2d 388, 389 [1994]; People v Torres, 136 AD2d 664,666 [1988]).
The defendant's claims of ineffective assistance of counsel are without merit, as defensecounsel provided the defendant with meaningful representation (see People v Benevento,91 NY2d 708, 711 [1998]; People v Baldi, 54 NY2d 137, 146-147 [1981]).
The defendant's contentions in points five, six, and seven of his brief are unpreserved forappellate review because those specific contentions were not raised during the suppressionhearing or the trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995];People v Redmond, 41 AD3d 514, 516 [2007]). His remaining contention, in point fourof his brief, concerning the propriety of the introduction of a mannequin to demonstrate thetrajectories of the bullets that hit the victim's body, is without merit (see People vAcevedo, 40 NY2d 701 [1976]). Rivera, J.P., Spolzino, Angiolillo and Balkin, JJ., concur.