| People v Hernandez |
| 2009 NY Slip Op 08242 [67 AD3d 820] |
| November 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marco Hernandez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Jason R.Richards of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan,J.), rendered January 26, 2007, convicting him of robbery in the second degree, grand larceny inthe fourth degree, and criminal possession of stolen property in the fifth degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
We find no basis to disturb the hearing court's determination that the defendant knowingly,voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona,384 US 436 [1966]). In particular, "[i]ntoxication alone is insufficient to render a statementinvoluntary. Only where it is demonstrated that the defendant was intoxicated to a degree ofmania or of being unable to understand the meaning of his statements is suppression warranted"(People v Benjamin, 17 AD3d688 [2005] [citations omitted]; see People v Schompert, 19 NY2d 300, 305 [1967],cert denied 389 US 874 [1967]; People v Ginsberg, 36 AD3d 627 [2007]). Here, the evidencefailed to establish that the defendant was intoxicated to such a degree. [*2]Moreover, the evidence supported the hearing court's determinationthat the defendant appreciated the immediate import of the Miranda warnings (seePeople v Williams, 62 NY2d 285, 290 [1984]; People v Hernandez, 46 AD3d 574, 575-576 [2007]).
The trial court did not err in denying the defendant's motion to sever his trial from that of hiscodefendant. " '[W]here proof against the defendants is supplied by the same evidence, only themost cogent reasons warrant a severance' " (People v Mahboubian, 74 NY2d 174, 183[1989], quoting People v Bornholdt, 33 NY2d 75, 87 [1973], cert denied 416 US905 [1974]). Here, contrary to the defendant's contention, the record does not reveal anirreconcilable conflict between his defense and his codefendant's defense such that the conflictalone would have led the jury to infer the defendant's guilt (see People v Williams, 48 AD3d 715 [2008]; People vHernandez, 260 AD2d 399, 400 [1999]).
The defendant's request for a missing witness charge was untimely (see People v Woods,275 AD2d 332, 333 [2000]). In any event, the Supreme Court properly denied that request(see People v Smith, 49 AD3d904 [2008]; People v Herrera, 285 AD2d 613, 614 [2001]; People v Cephas,207 AD2d 903, 904 [1994]).
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, 348 [2007]), we neverthelessaccord great deference to the opportunity of the trier of fact to view the witnesses, hear thetestimony, and observe demeanor (People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero,7 NY3d 633, 638 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Prudenti, P.J., Skelos, Covello and Austin, JJ., concur.