| People v Camacho |
| 2010 NY Slip Op 01189 [70 AD3d 1393] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v YeshuaCamacho, Also Known as Yeshua Manuel Camacho Figueroa, Yeshua Manuel FigueroCamacho, and Manuel Camacho, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedDecember 20, 2007. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree (two counts), robbery in the first degree, and conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,two counts of murder in the second degree (Penal Law § 125.25 [3]), defendant contendsthat the verdict is inconsistent insofar as the jury convicted him of murder in the second degreeunder subdivision (3) of Penal Law § 125.25 but acquitted him of the counts of intentionalmurder in the second degree (§ 125.25 [1]) and conspiracy in the second degree (§105.15). Defendant failed to raise that contention prior to the discharge of the jury and thusfailed to preserve it for our review (see People v Alfaro, 66 NY2d 985 [1985]; Peoplev Satloff, 56 NY2d 745 [1982], rearg denied 57 NY2d 674 [1982]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Contrary to the further contention of defendant, the convictionis supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Furthermore, 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 Bleakley, 69 NY2d at 495).
We reject the contention of defendant that his written and oral statements to the police wereinvoluntary and that County Court therefore erred in refusing to suppress them. "Thevoluntariness of a confession is to be determined by examining the totality of the circumstancessurrounding the confession" (People v Coggins, 234 AD2d 469, 470 [1996]; seePeople v Scott, 212 AD2d 1047 [1995], affd 86 NY2d 864 [1995]). Here,defendant's statement was not rendered involuntary by reason of any alleged [*2]deception by the police. In general, mere deception by the policewill not require suppression of a statement obtained therefrom unless "the deception was sofundamentally unfair as to deny due process" (People v Tarsia, 50 NY2d 1, 11 [1980]),or if the police made a" 'promise or threat . . . that could induce a false confession' " (People vTankleff, 84 NY2d 992, 994 [1994]). "Even assuming, arguendo, that the police misleddefendant, we conclude that such deception did not create a substantial risk that the defendantmight falsely incriminate himself" (People v Alexander, 51 AD3d 1380, 1382 [2008], lv denied11 NY3d 733 [2008] [internal quotation marks omitted]; see People v Sanchez, 286AD2d 650 [2001], lv denied 97 NY2d 760 [2002]; People v Jackson, 143 AD2d471, 473 [1988]).
We also reject defendant's contention that the court abused its discretion by admitting inevidence certain photographs of the murder victim (see generally People v Pobliner, 32NY2d 356, 369-370 [1973], rearg denied 33 NY2d 657 [1973], cert denied 416US 905 [1974]). Here, the photographs were relevant to show an intent to kill, to corroborate themedical examiner's testimony concerning the cause of death, and to corroborate the statementsthat defendant made to several witnesses concerning the commission of the crime (see People v Jones, 43 AD3d1296, 1297-1298 [2007], lv denied 9 NY3d 991, 10 NY3d 812 [2007]; People vLaw, 273 AD2d 897, 898 [2000], lv denied 95 NY2d 965 [2000]). Finally, thesentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley, Greenand Gorski, JJ.