| People v Bigelow |
| 2009 NY Slip Op 09669 [68 AD3d 1127] |
| December 22, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sharory Bigelow, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.),rendered January 23, 2007, convicting him of murder in the second degree, attempted robbery inthe first degree, and criminal possession of a weapon in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing (Collini, J.),of that branch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
In his omnibus motion, the defendant, who made certain statements to law enforcementofficials after being arrested, sought, inter alia, a Dunaway and Huntley hearing(see Dunaway v New York, 442 US 200 [1979]; People v Huntley, 15 NY2d 72[1965]). Although it is unclear from the record whether that branch of the motion which was fora Dunaway hearing was withdrawn by the defendant or overlooked by the hearing court,it is clear that the hearing court, which properly determined that the defendant's statements werevoluntarily made (see People v Cooper, 36 AD3d 828 [2007]), never issued a ruling onthat branch of that motion. By acquiescing in the lack of a ruling, the defendant abandoned thatbranch of the motion, thereby rendering his present Dunaway claim unpreserved forappellate review (see CPL 470.05 [2]; People v Anderson, 52 AD3d 1320,1320-1321 [2008]; People v Henriquez, 246 AD2d 427 [1998]). We decline to reviewthat claim in the exercise of our interest of justice jurisdiction.
To the extent the defendant's claims of ineffective assistance of counsel are based uponmatter dehors the record, they may not be reviewed on direct appeal (see People vBallinger, 62 AD3d 895 [2009]; People v Rosas, 306 AD2d 91, 92 [2003]). Insofaras we are able to review those claims, defense counsel provided the defendant with meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People vRivera, 71 NY2d 705, 709 [1988]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the evidence (see CPL 470.15 [5]; People v Danielson,9 NY3d 342 [2007]), we nevertheless accord great [*2]deferenceto the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People vRomero, 7 NY3d 633 [2006]). Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.