| People v Saunders |
| 2010 NY Slip Op 02591 [71 AD3d 1058] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Samuel Saunders, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered March 26, 2008, convicting him of murder in the second degree (fourcounts), kidnapping in the first degree, robbery in the first degree, burglary in the first degree,and criminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The Supreme Court correctly permitted the introduction of testimony by the victim of arobbery committed approximately six months before the murder of the victim in this case asevidence of the identity of the perpetrator of the instant crime. The testimony constituted clearand convincing evidence that the defendant committed the prior robbery by using a sufficientlydistinctive and unique modus operandi similar to the manner in which the crime was committedin this case, which was probative of the defendant's identity as one of the perpetrators of themurder of the victim in this case (see People v Mateo, 93 NY2d 327, 332 [1999];People v Robinson, 68 NY2d 541, 549-550 [1986]; People v Alvino, 71 NY2d233, 242 [1987]; People v Molineux, 168 NY 264, 293 [1901]; People v Smith,63 AD3d 1301, 1303 [2009]; People v Gousse, 57 AD3d 800 [2008]; People vLatimer, 24 AD3d 807, 809 [2005]; People v Manino, 306 AD2d 542 [2003];People v Rodriguez, 274 AD2d 593, 594 [2000]). In both cases, the victim was a personwho had previously been involved in a real estate transaction with the defendant. The perpetratorwas assisted by a younger man or men armed with a weapon. The victim was directed to sit in achair brought from another room, and, at gunpoint, to call a financial institution to ascertain theavailable balance in an account. The victims in both cases were each compelled to write a checkpayable to the defendant in a rounded amount, slightly below the available balance in theaccount. In addition, both victims were restrained in some manner by the use of duct tape(see People v Balazs, 258 AD2d 658, 659 [1999]).
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 beyond a reasonable doubt. In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see [*2]CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348[2007]), we nevertheless accord great deference to 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 are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that his statements to detectives should have been suppressedbecause he refused to sign the Miranda rights card (see Miranda v Arizona, 384US 436 [1966]) from which a detective read his rights, is without merit. A defendant who refusesto sign a written waiver of his rights, including a Miranda rights card, may neverthelessorally waive his rights (see North Carolina v Butler, 441 US 369, 373 [1979]; Peoplev Robinson, 287 AD2d 398 [2001]; People v Spencer, 279 AD2d 539, 540 [2001];People v Hendricks, 222 AD2d 74, 80 [1996], affd 90 NY2d 956 [1997];People v DaCosta, 201 AD2d 402 [1994]; People v Slaughter, 163 AD2d 342[1990]; People v Howard, 162 AD2d 408, 409-410 [1990]; People v Danaher,115 AD2d 905, 906 [1985]). There is no basis in the record to disturb the factual findings of thehearing court that the defendant orally waived his rights in a knowing, voluntary, and intelligentmanner (see People v Oliveira, 2 AD3d 122, 122 [2003], cert denied 543 US 840[2004]; People v Robinson, 287 AD2d at 398; People v Hendricks, 222 AD2d at80). Notwithstanding the defendant's refusal to sign the Miranda rights card, hesimultaneously and affirmatively announced his willingness to speak to detectives (seeConnecticut v Barrett, 479 US 523, 529 [1987]; cf. United States v Plugh, 576 F3d135, 141 [2009]).
Moreover, the defendant's statements, save for a brief statement he gave to a DetectiveSergeant, were properly preceded by the administration of Miranda warnings, followedby a valid waiver of his rights (see People v White, 10 NY3d 286, 291 [2008], certdenied 555 US —, 129 S Ct 221 [2008]; People v Gruttadauria, 46 AD3d 837,838 [2007]; People v Jenkins, 44 AD3d 565, 566 [2007]; People v Lowin, 36AD3d 1153, 1154-1155 [2007]). The erroneous admission of the defendant's statement to theDetective Sergeant was harmless, as the proof of the defendant's guilt, without reference to theerror, was overwhelming, there was no significant probability that the jury would have acquittedthe defendant had it not been for the admission of the statement, and a portion of the statementwas cumulative to the other statements the defendant made to detectives (see People vGillyard, 13 NY3d 351 [2009]; People v Paulman, 5 NY3d 122, 134 [2005];People v Crimmins, 36 NY2d 230 [1975]; People v Payne, 41 AD3d 512, 514[2007]).
The Supreme Court correctly determined that the defendant could be questioned regardinghis conviction of, and the underlying facts regarding, his previous conviction of grand larceny inthe third degree, if he chose to testify at the trial (see People v Fulford, 280 AD2d 682[2001]; see also People v Neil, 30 AD3d 901, 902 [2006]; People v Reilly, 19AD3d 736, 738 [2005]).
The defendant's remaining contentions are without merit. Covello, J.P., Santucci, Miller andEng, JJ., concur.