| People v Seabrooks |
| 2011 NY Slip Op 02425 [82 AD3d 1130] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KarimSeabrooks, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Selha R.Abed on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Alfieri, J.),rendered August 17, 2009, convicting him of grand larceny in the third degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, 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, a review of the totality of the circumstances (seePeople v Mateo, 2 NY3d 383, 413 [2004], cert denied 542 US 946 [2004];People v Anderson, 42 NY2d 35, 38 [1977]) demonstrates that his written statement tothe police, which was given after he was informed of, and waived, his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]), was voluntarily made (see CPL60.45 [1]; People v Mateo, 2 NY3d at 414; People v Huntley, 15 NY2d 72[1965]). Accordingly, that branch of the defendant's omnibus motion which was to suppress hisstatement to law enforcement officials was properly denied. The defendant improperly relies ontrial testimony in support of his contention that the statement was involuntarily made (seePeople v Castellanos, 65 AD3d 555, 556 [2009]; People v O'Neil, 62 AD3d 727[2009]; People v Kocowicz, 281 AD2d 643 [2001]; People v Andujar, 267 AD2d467 [1999]).
We agree with the defendant that the County Court improperly allowed the prosecutor tocross-examine him about facts underlying prior convictions that were similar to the factsunderlying the present charge. In its original Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]), the County Court ruled that the People could not elicit thefacts underlying the prior convictions unless the defendant "opened the door." "[W]hen thedefendant or a witness for the defense testifies to facts that are in conflict with the precludedevidence . . . the defense 'opens the door' on the issue in question, and the witness isproperly subject to impeachment by the prosecution's use of the otherwise precluded evidence"(People v Fardan, 82 NY2d 638, 646 [1993]; see People v Cooper, 92 NY2d 968,969 [1998]; People v Rodriguez, 85 NY2d 586, 591 [1995]). Contrary to the CountyCourt's determination, the defendant [*2]did not testify to facts inconflict with the precluded evidence, and therefore did not "open the door" to the otherwiseprecluded evidence. Also contrary to the County Court's conclusion, the evidence was notadmissible under the "intent" exception to the Molineux rule (see People vMolineux, 168 NY 264 [1901]), as the defendant's intent could easily be inferred by the actitself (see People v Alvino, 71 NY2d 233, 242 [1987]; People v Katz, 209 NY311, 327-328 [1913]). However, the evidence of the defendant's guilt was overwhelming andthere was no significant probability that the error contributed to the defendant's conviction(see People v Arafet, 13 NY3d 460, 466-467 [2009]; People v Crimmins, 36NY2d 230, 241-242 [1975]).
The defendant's contention that he was deprived of a fair trial by the complaining witness'simproper conduct and comments while on the witness stand is unpreserved for appellate reviewand, in any event, without merit. At the defendant's request, the trial court admonished thewitness to not make any gestures or faces and to otherwise conduct herself appropriately. Inaddition, the County Court issued a curative instruction to which the defendant did not objectfurther or take exception. The curative instruction, therefore, must be deemed to have correctedany errors to the defendant's satisfaction (see People v Heide, 84 NY2d 943, 944 [1994];People v Williams, 46 NY2d 1070, 1071 [1979]; People v Ketteles, 62 AD3d902, 905 [2009]; People v Smith, 294 AD2d 454 [2002]).
Contrary to the defendant's contentions, he was not prejudiced by the People's late disclosureof an oral statement the defendant made to the police or of a positive identification made of thedefendant, as the People did not intend to offer the evidence at trial and the County Court ruledthat it would be suppressed (cf. CPL 710.30).
The defendant contends that the County Court committed reversible error in failing to chargethe jury that it could consider grand larceny in the fourth degree as a lesser included offense ofgrand larceny in the third degree. We disagree. In the absence of a request to submit a lesserincluded offense to the jury, a court's failure to do so does not constitute error (see CPL300.50 [2]). A review of the record indicates that the defendant specifically rejected the CountyCourt's offer to submit the lesser included offense.
Finally, the defendant's contention that his sentence was excessive is without merit, as hereceived the minimum possible sentence for a second felony offender convicted of a class Dfelony (see Penal Law § 70.06 [3] [d]; [4] [b]). Angiolillo, J.P., Florio, Belen andMiller, JJ., concur.