| People v Young |
| 2009 NY Slip Op 09866 [68 AD3d 1761] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MatthewYoung, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), renderedSeptember 25, 2007. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree (two counts) and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict oftwo counts of assault in the first degree (Penal Law § 120.10 [1], [2]) and one count ofcriminal possession of a weapon in the third degree (§ 265.02 [1]). We reject thecontention of defendant that the stop of his vehicle was illegal and thus that County Court erredin refusing to suppress as the fruit of an illegal stop statements that he made to the police as wellas his shoes that were seized by the police. The police had reasonable suspicion to stop thevehicle that defendant was driving based on the description of the vehicle that was broadcastover the police radio, the proximity of the vehicle to the area where the assault had occurred, andthe light traffic conditions (see People vVan Every, 1 AD3d 977, 978-979 [2003], lv denied 1 NY3d 602 [2004];People v Berry, 306 AD2d 623, 623-624 [2003], lv denied 100 NY2d 618[2003]).
Defendant further contends that the statements that he made while in two police vehicleswere obtained in violation of his right to counsel and thus that the court erred in refusing tosuppress those statements. We reject that contention as well. The statements of defendant whileusing his cell phone were spontaneous inasmuch as "they were in no way the product of an'interrogation environment [, i.e.,]' . . . the result of 'express questioning or itsfunctional equivalent' " (People v Stoesser, 53 NY2d 648, 650 [1981]; see People vHarris, 57 NY2d 335, 342 [1982], cert denied 460 US 1047 [1983]). Further,defendant's statement to an officer in the vehicle was also spontaneous (see People vClabeaux, 277 AD2d 988 [2000], lv denied 96 NY2d 781 [2001]).
We reject defendant's contention that the testimony of a police investigator rendered theindictment defective. It cannot be said that the testimony of the investigator impaired theintegrity of the grand jury proceedings (see generally People v Huston, 88 NY2d 400,409 [1996]) and, in particular, the testimony concerning blood evidence was not improperbecause even " '[l]ay witnesses are competent to identify blood from its appearance' " (Peoplev Rusho, 291 AD2d 855, 856 [2002], lv denied 98 NY2d 680 [2002]). Defendantfailed to preserve for our review his challenge to the [*2]court'sultimate Sandoval ruling (seePeople v Alston, 27 AD3d 1141 [2006], lv denied 6 NY3d 892 [2006]), and wedecline to exercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Finally, we conclude that the court properly determined that defendant's self-serving statementwas inadmissible (see People v Oliphant, 201 AD2d 590 [1994], lv denied 83NY2d 875 [1994]), and that the sentence is not unduly harsh or severe. Present—Hurlbutt,J.P., Smith, Fahey and Carni, JJ.