| People v Tyrell |
| 2009 NY Slip Op 08250 [67 AD3d 827] |
| November 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Calvin Tyrell, 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(Bellantoni, J.), rendered June 21, 2006, convicting him of manslaughter in the first degree,assault in the first degree, criminal use of a firearm in the first degree, and criminal possession ofa weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress his statement to law enforcement officials.
Ordered that the judgment is affirmed.
On Saturday, December 21, 1991, the defendant was collecting admission money at the doorfor a house party in Elmsford, in Westchester County. Carlos Robinson arrived at the partyaround midnight, and he and the defendant became involved in an argument. Robinson threw abeer bottle at the defendant, Robinson testified that he missed; the defendant testified that thebottle hit him in the chest. In response, the defendant took out his gun and shot at Robinson,who, the defendant testified, was reaching for something in his trench coat. Robinson was shot inthe face. He lost the sight in his right eye, and the hearing in his right ear. The defendant's friendAnsel Barrett was also shot, and died.[*2]
The defendant was arrested 14 years later by UnitedStates Marshals in Florida, where he was living under the name of Chris Riley. After he was readhis Miranda rights (see Miranda v Arizona, 384 US 436 [1966]) and asked to seehis lawyer, a deputy United States Marshal informed the defendant that he was being arrested fora shooting in New York 14 years earlier; the defendant responded by saying that he was at theshooting, but did not do it. The hearing court denied that branch of the defendant's omnibusmotion which was to suppress this statement.
At trial, the defendant took the stand in his own defense, and the People asked him aboutprior convictions for marijuana possession, assault, and battery, pursuant to a pretrialSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]). The juryconvicted the defendant of manslaughter in the first degree, assault in the first degree, criminaluse of a firearm in the first degree, and criminal possession of a weapon in the second degree.
It is within a trial court's discretion to allow the People to impeach the defendant with priorconvictions, should he choose to take the stand (see People v Mattiace, 77 NY2d 269,274-275 [1990]; People v Sandoval, 34 NY2d 371 [1974]). The Court must strike anappropriate balance between the probative value of the defendant's prior convictions on the issueof credibility and the possible prejudice to the defendant (see People v Springer, 13 AD3d 657, 658 [2004]). The defendantbears the burden of demonstrating that "the prejudicial effect of admitting the prior convictionwould so outweigh the probative worth on the issue of credibility as to warrant its exclusion"(People v Brooks, 104 AD2d 999, 999 [1984]). Here, the County Court providentlyexercised its discretion in allowing the People to inquire about the defendant's prior convictions.Moreover, the defendant's testimony that he had never used drugs opened the door to furtherinquiry regarding his conviction for marijuana possession (see People v Thomas, 47 AD3d 850, 850-851 [2008]; People v Martinez, 1 AD3d 611[2003]).
The County Court properly denied that branch of the defendant's omnibus motion which wasto suppress the statement he made to the deputy United States Marshal. "Volunteered statementsare admissible provided the defendant spoke with genuine spontaneity 'and not the result ofinducement, provocation, encouragement or acquiescence, no matter how subtly employed' "(People v Rivers, 56 NY2d 476, 479 [1982], quoting People v Maerling, 46NY2d 289, 302-303 [1978]; see People v Hylton, 198 AD2d 301 [1993]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Finger,95 NY2d 894, 895 [2000]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). The evidence was sufficient to establish thephysical injury element of assault in the first degree, and that the defendant was not justified(see Penal Law § 120.10 [1]; People v Alexander, 50 AD3d 816, 817-818 [2008]; Penal Law§ 35.15 [2]; People v Candelaria, 206 AD2d 385 [1994]).[*3]
The defendant's remaining contention does not requirereversal (see People v Crimmins, 36 NY2d 230 [1975]). Dillon, J.P., Miller, Angiolilloand Dickerson, JJ., concur.