| People v Sampson |
| 2009 NY Slip Op 08848 [67 AD3d 1031] |
| November 24, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sydney Sampson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Karen Wigle Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered December 5, 2006, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Eng, J.), of that branch of the defendant'somnibus motion which was to suppress his statement to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention, raised in his supplemental pro se brief, that a statement elicitedfrom him by police detectives should have been suppressed because he had not receivedMiranda warnings (see Miranda v Arizona, 384 US 436, 444-445 [1966]) whilehe was in custody, is without merit. We agree with the finding of the hearing court, which isentitled to great deference, that the defendant was not in custody when he gave his exculpatorystatement to the detectives (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied400 US 851 [1970]; People v Brown, 44 AD3d 966 [2007]; People v Dillhunt,41 AD3d 216, 216-217 [2007]).
The defendant's contention that reversal of his conviction is required based on theprosecutor's alleged improper comments in his opening statement is unpreserved for appellatereview (see CPL 470.05 [2]; People v Stiff, 60 AD3d 1094 [2009]; People vMiller, 59 AD3d 463, 464 [2009]) and, in any event, is without merit (see People vSayers, 64 AD3d 728, 732-733 [2009]; People v Stiff, 60 AD3d at 1094).
The defendant's further contention, raised in his supplemental pro se brief, that the evidencewas legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved forappellate review, as his defense counsel merely made a general motion for a trial order ofdismissal based upon the People's alleged failure to make out a prima facie case (seeCPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish his guilt beyonda reasonable doubt.[*2]
In fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645[2006]).
The defendant next challenges the photographic evidence admitted during the trial in chief.It is settled law that photographic evidence "should be excluded only if its sole purpose is toarouse the emotions of the jury and to prejudice the defendant" (People v Pobliner, 32NY2d 356, 370 [1973], cert denied 416 US 905 [1974]; see People v Stevens, 76NY2d 833, 835 [1990]). The admissibility of photographs, even if gruesome in nature, is amatter committed to the sound discretion of the trial court, if it tends "to prove or disprove adisputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate ordisprove some other evidence offered or to be offered" (People v Wood, 79 NY2d 958,960 [1992]; see People v Stevens, 76 NY2d at 835; People v Pobliner, 32 NY2dat 369; People v Dickerson, 42 AD3d 228, 237 [2007]; People v Diaz, 35 AD3d226, 227 [2006]). The photographs in this case were not offered for the sole purpose of arosingthe emotions of the jurors.
The defendant contends that he was deprived of a fair trial by certain remarks made by theprosecutor during his summation, inter alia, appealing for sympathy for the deceased (seePeople v Brown, 26 AD3d 392, 393 [2006]; People v Bhupsingh, 297 AD2d 386,388 [2002]; People v Walters, 251 AD2d 433, 434 [1998]), and attempting to shift theburden of proof (see People v Jamal, 307 AD2d 267, 268 [2003]; cf. People vEdwards, 38 AD3d 1133, 1134 [2007]; People v Warren, 27 AD3d 496, 498 [2006]).However, any errors with respect to the prosecutor's comments were harmless, as there wasoverwhelming proof of the defendant's guilt, and there was no significant probability that theremarks contributed to the defendant's conviction (see People v Crimmins, 36 NY2d230, 237 [1975]; People v Miller, 59 AD3d 463, 464 [2009]; People v Lacewell,44 AD3d 876, 877 [2007]).
The defendant was afforded the effective assistance of trial counsel (see People v Caban,5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d 277, 283-284 [2004]; Peoplev Benevento, 91 NY2d 708, 713-714 [1998]; People v Holmes, 47 AD3d 946, 947[2008]).
The defendant's contentions regarding the admission of a photocopy of a photograph and thealleged failure to provide Rosario material (see People v Rosario, 9 NY2d 286[1961], cert denied 368 US 866 [1961]), raised for the first time on appeal in hissupplemental pro se brief, are based on matter dehors the record, and cannot be reviewed on thisdirect appeal from the judgment (see People v Jackson, 41 AD3d 498, 500 [2007]).
The defendant's contentions, raised in his supplemental pro se brief, concerning theadmission of evidence that he possessed guns prior to the murder, the alleged insufficiency of theevidence presented to the grand jury, and that the testimony of his wife was subject to the maritalprivilege, are without merit.
The defendant's remaining contentions, raised in his supplemental pro se brief, areunpreserved for appellate review and, in any event, are without merit. Fisher, J.P., Covello,Santucci and Balkin, JJ., concur.