| People v Castro |
| 2010 NY Slip Op 03952 [73 AD3d 800] |
| May 4, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JulioCastro, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin,J.), rendered October 7, 2008, convicting him of burglary in the first degree, robbery in the firstdegree, robbery in the second degree, criminal possession of a weapon in the third degree (fivecounts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (McGann, J.), ofthat branch of the defendant's omnibus motion which was to suppress his statement to lawenforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, under the circumstances here, the Supreme Court didnot err when it determined that a police officer's act of placing a knife recovered from the crimescene on a desk where the defendant was seated while the officer obtained the defendant'spedigree information, was not the functional equivalent of a police interrogation. The credibilitydeterminations of the Supreme Court following a suppression hearing "are entitled to greatdeference on appeal and will not be disturbed unless clearly unsupported by the record" (People v Baliukonis, 35 AD3d626, 627 [2006]; see People vHenderson, 57 AD3d 562, 564 [2008]; People v Whyte, 47 AD3d 852, 852-853 [2008]). The SupremeCourt properly found that the defendant's spontaneous statement, made after he was arrested, butbefore Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) wereadministered, was not triggered by any police questioning or other conduct which reasonablycould have been expected to elicit a declaration from him (see People v Henderson, 57AD3d at 564; People v Whyte, 47 AD3d at 852-853; People v Baliukonis, 35AD3d at 627).
The defendant contends that the Trial Judge made an improper statement concerning anuncalled witness during his attorney's summation. However, the evidence of the defendant'sguilt, without reference to the Trial Judge's statement, was overwhelming, and there is noreasonable possibility that the alleged error might have contributed to the defendant's conviction(see People v Renner, 80 AD2d 705, 706 [1981]; People v White, 54 AD2d 744[1976]; cf. People v Gray, 276 AD2d 714 [2000]). Thus, any error was harmless beyonda reasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975]).[*2]
The sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, either are without merit or do not require reversal. Skelos, J.P., Angiolillo, Leventhal andRoman, JJ., concur.