| People v Rodriguez |
| 2010 NY Slip Op 00884 [70 AD3d 729] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Leroy Rodriguez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch and Ilisa T.Fleischer of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.),rendered October 31, 2006, convicting him of burglary in the first degree, robbery in the firstdegree (three counts), criminal possession of a weapon in the second degree (two counts), andcriminal possession of a weapon in the third degree (two counts), upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Sullivan, J.), ofthose branches of the defendant's omnibus motion which were to suppress his statements to lawenforcement officials and identification testimony.
Ordered that the judgment is affirmed.
The defendant moved, inter alia, to suppress his statements to law enforcement officials onthe ground that they were the fruits of an unlawful arrest (see Wong Sun v United States,371 US 471, 486-488 [1963]). The hearing court properly denied that motion. About an hour anda half after a report of three armed robbers in a private residence, the defendant was observed ata train station about a mile and a half from the residence, fitting the general description of one ofthe perpetrators. When the defendant pulled a shiny gray object from his clothing, the detectivewho arrested the defendant reasonably feared for his safety and took the protective measure ofgrabbing the defendant's wrist, causing him to drop two cell phones (see People v Holmes, 36 AD3d714, 715-716 [2007]; People vJohnson, 22 AD3d 371, 372 [2005]; People v Lynch, 285 AD2d 518, 519[2001]). The defendant explained that he had been at a party with a relative, whom he identifiedby name. The detective learned from a fellow officer that the cell phones were proceeds of therobbery and that the name the defendant had mentioned was an alias of one of the perpetratorsalready in custody. In making the arrest, the detective was entitled to rely upon this additionalinformation (see People v Ketcham, 93 NY2d 416, 419-420 [1999]; People vGrandsoult, 295 AD2d 362, 363 [2002]; cf. People v Eastman, 32 AD3d 965, 965-966 [2006]). Under allthe circumstances, the detective had probable cause to arrest the defendant (see People v Velez, 59 AD3d 572,574-575 [2009]; People v Morales,58 AD3d 873, 874 [2009]; People v Grandsoult, 295 AD2d at 363).
The hearing court also properly rejected the defendant's argument that his inculpatorystatement made to law enforcement officials was involuntary. The defendant was arrested at 9:20p.m., and at 10:06 p.m. he was advised of, and voluntarily waived, his Miranda rights(see Miranda v Arizona, [*2]384 US 436 [1966]). Heimmediately made oral statements denying his involvement. During a second round ofquestioning, the defendant made an inculpatory statement, starting at 4:25 a.m., culminating inhis signing of a written transcription of that statement at 5:50 a.m. Based on the totality of thecircumstances (see People v Anderson, 42 NY2d 35 [1977]), including the duration andconditions of detention, the conduct and demeanor of the police toward the defendant, and theage, physical state, and mental state of the defendant, his post-Miranda statements werevoluntarily made (see People vPegues, 59 AD3d 570, 571-572 [2009]; People v Lee, 30 AD3d 760, 762 [2006]; People v Baker,208 AD2d 758, 758-759 [1994]; People v Kranz, 180 AD2d 760, 760-761 [1992]; cf.People v Anderson, 42 NY2d at 38-41).
The defendant's contention that the police should have advised him of his Mirandarights a second time is unpreserved for appellate review (see CPL 470.05 [2]). Inany event, contrary to the defendant's contention, under the circumstances herein, the police werenot required to readminister the Miranda warnings prior to his statement madeapproximately 6½ hours after first questioning him, as he remained in continuous custodyand voluntarily waived his rights (seePeople v Bridges, 63 AD3d 752 [2009], lv denied 13 NY3d 794; People v Petronio, 34 AD3d 602,604 [2006]; People v Gonzalez, 5AD3d 696, 697 [2004]).
The defendant further contends that a post-arrest photographic identification should havebeen suppressed on the ground that the People failed to establish an independent source for thewitness's identification of him in light of the media coverage of his arrest. This contention isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the defendant failedto adduce any evidence of undue suggestiveness in the pretrial identification procedure, and thePeople, accordingly, had no burden of establishing an independent source for the identification(see People v Jackson, 98 NY2d 555, 559 [2002]; People v Chipp, 75 NY2d 327,335 [1990], cert denied 498 US 833 [1990]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of each offense of which he was convicted beyond a reasonable doubt.Moreover, 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 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's remaining contentions are without merit. Santucci, J.P., Balkin, Eng andChambers, JJ., concur.