| People v Rivera |
| 2010 NY Slip Op 05030 [74 AD3d 993] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BrianRivera, Appellant. |
—[*1]
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs,J.), rendered October 11, 2007, convicting him of murder in the second degree (felony murder),and criminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of murder in the second degree (felony murder) and criminal possession of a weaponin the second degree is unpreserved for appellate review, as the defendant merely made a generalmotion for a trial order of dismissal based upon the People's alleged failure to establish a primafacie case both after the People rested and after the close of the evidence. The defendant did notassert any specific grounds in his motions, including whether there was insufficient evidence tocorroborate the accomplice testimony in accordance with CPL 60.22 (1) (see CPL470.05 [2]; People v Hawkins, 11NY3d 484 [2008]; People vJackson, 70 AD3d 858 [2010], lv denied 14 NY3d 841 [2010]; People v Demolaire, 55 AD3d621, 622 [2008]; People vForino, 39 AD3d 664, 665 [2007]).
In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[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 vRomero, 7 NY3d 633 [2006]). The evidence "tend[ed] to connect the defendant to thecrime[s] charged" (People vMontefusco, 44 AD3d 879, 880 [2007]; see CPL 60.22 [1]; People vBesser, 96 NY2d 136, 143-144 [2001]; People v Breland, 83 NY2d 286, 292-293[1994]; People v Steinberg, 79 NY2d 673, 683 [1992]; People v Delgado, 50 AD3d 915,917 [2008]). The corroborative evidence, consisting of, among other things, records of cellphone calls made to and by the defendant during the course of the incident (see People vGarcia, 232 AD2d 578 [1996]; People v Barbieri, 207 AD2d 554, 555 [1994]), andthe defendant's statements to the police (see People v Booker, 53 AD3d 697, 702 [2008]; People v Harris, 19 AD3d 871,873 [2005]; People v Dorsey, 3AD3d 590, 592 [2004]; People v Weeks, 176 AD2d 836, 836-837 [1991]), wereindependent of, and did not draw its weight and probative value from, the accomplice testimony(see People v Steinberg, 79 NY2d at 683; People v Delgado, 50 AD3d at 917).[*2]
The defendant's contention that certain autopsyphotographs of the victim were improperly admitted into evidence by the trial court isunpreserved for appellate review (see CPL 470.05 [2]; People v Dickerson, 42 AD3d228, 236-237 [2007]). In any event, the photographs were properly admitted into evidence,as the "sole purpose" of their admission was not "to arouse the emotions of the jury and toprejudice the defendant" (People v Pobliner, 32 NY2d 356, 370 [1973], cert denied416 US 905 [1974]; see People v Wood, 79 NY2d 958, 960 [1992]; People v Sampson, 67 AD3d1031, 1032 [2009]; People vAllan, 41 AD3d 727 [2007]; People v Clark, 37 AD3d 487, 488 [2007]; People v Diaz, 35 AD3d 226, 227[2006]). Instead, the photographs were properly admitted to illustrate and corroborate thetestimony of the medical examiner who performed the autopsy (see People v Rhodes, 49 AD3d668, 669-670 [2008]; People v Allan, 41 AD3d at 727-728; People v Clark,37 AD3d at 488).
The statements made by one of the defendant's accomplices during a telephone call to hisgirlfriend, while he was driving to the location where the subject robbery was to occur, wereproperly admitted into evidence as a present sense impression (see People v Brown, 80NY2d 729, 734 [1993]; People vBarnes, 64 AD3d 890, 892 [2009]; People v Foster, 52 AD3d 957, 961 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Santucci, J.P., Angiolillo, Dickersonand Austin, JJ., concur.