| People v Smith |
| 2010 NY Slip Op 07795 [77 AD3d 980] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marvin Smith, 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(Cohen, J.), rendered March 17, 2009, convicting him of failure to register or verify his status asa sex offender (two counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress certain statements made to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution established by a preponderance of theevidence that venue was proper in Westchester County (see CPL 20.40 [3]; People vGreenberg, 89 NY2d 553, 555-556 [1997]; People v Ribowsky, 77 NY2d 284,291-292 [1991]).
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress certain statements he made to law enforcement officials.The credibility determinations of the Supreme Court following a suppression hearing " 'areentitled to great deference on appeal and will not be disturbed unless clearly unsupported by therecord' " (People v Castro, 73 AD3d800, 800 [2010], quoting People vBaliukonis, 35 AD3d 626, 627 [2006]; see People v Shackleford, 57 AD3d 578 [2008]). Here, there wassufficient evidence to support the hearing court's conclusion that the defendant was not in policecustody at the time he made those statements (see People v Yukl, 25 NY2d 585, 589[1969]; People v Sexton, 73 AD3d953 [2010]; People v Verrilli,69 AD3d 963 [2010]; People vMartin, 68 AD3d 1015 [2009]).
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. 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, we are satisfied that the verdict of guilt was not against the weight ofthe [*2]evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the People's contention, the defendant preserved for appellate review hisargument that the Supreme Court erred in permitting the People to call a witness to testify at trialthat he observed the defendant in White Plains on the grounds that this testimony was irrelevantand prejudicial (see CPL 470.05 [2]). Moreover, the Supreme Court improvidentlyexercised its discretion in permitting this witness to testify that he observed the defendant inWhite Plains on three separate occasions. To the extent that this testimony was relevant to provethat the defendant resided in Westchester County, whatever probative value it conferred wassubstantially outweighed by the danger that it would unfairly prejudice the defendant or misleadthe jury (see People v Thomas, 65AD3d 1170, 1171-1172 [2009]; People v Bond, 198 AD2d 509, 510 [1993]).However, any error was harmless, as there was overwhelming evidence of the defendant's guilt,and no significant probability that the error contributed to his convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention that Correction Law § 168-f (3) is unconstitutional isunpreserved for appellate review (see CPL 470.05 [2]; People v Mojica, 62 AD3d 100,108 [2009]) and, in any event, without merit (see generally People v Nelson, 69 NY2d302, 307 [1987]; People v Smith, 44 NY2d 613, 618 [1978]; People v Mojica, 62AD3d at 108; People v Reed, 265 AD2d 56, 66 [2000]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit. Skelos, J.P., Eng, Belen and Hall, JJ., concur.