| People v Shaw |
| 2011 NY Slip Op 03638 [83 AD3d 1101] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Norman A. Shaw, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy and BridgetRahilly Steller of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered April 28, 2006, convicting him of robbery in the second degree (two counts) andcriminal possession of stolen property in the fourth degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress certain evidence, identification testimony,and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the People established by clear and convincingevidence that the in-court identification of the defendant was based upon the witness'sindependent observation of the defendant during the commission of the crime (see People vMarte, 12 NY3d 583, 586 [2009], cert denied 559 US —, 130 S Ct 1501[2010]; People v Kelly, 68 AD3d 895 [2009], affd 16 NY3d 803 [2011];People v Adelman, 36 AD3d 926, 927 [2007]; People v Ortiz, 7 AD3d 544[2004]; People v Radcliffe, 273 AD2d 483, 484 [2000]).
Moreover, the record supports the hearing court's conclusion that the People established thatthe police had reasonable suspicion to stop the defendant and that reasonable suspicion ripenedinto probable cause to place him under arrest (see People v Morales, 58 AD3d 873[2009]).
The defendant's statements to law enforcement officials were properly admitted intoevidence. The hearing court properly determined that the statements made by the defendant as hewas being secured and placed under arrest, but before he was administered Mirandawarnings (see Miranda v Arizona, 384 US 436 [1966]), were not triggered by policequestioning or other conduct which reasonably could have been expected to elicit a declarationfrom him (see People v Baliukonis, 35 AD3d 626, 627 [2006]). The hearing court alsoproperly determined that the defendant's statements made after Miranda warnings wereadministered were voluntarily made after he knowingly and intelligently waived his Mirandarights (id. at 627). After the defendant was advised of, and waived, his Mirandarights, additional warnings were not necessary, since he remained in continuous custody(see People v Petronio, 34 AD3d 602, 604 [2006]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008];People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a [*2]reasonable doubt. Moreover, upon our independent review pursuantto CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant was not deprived of the effective assistance of counsel, as the record revealsthat defense counsel provided meaningful representation (see People v Benevento, 91NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The People met their burden of proving beyond a reasonable doubt that the defendant was apersistent violent felony offender (see Penal Law § 70.08). Contrary to thedefendant's contention, the certificates of conviction annexed to the amended persistent violentfelony offender statement were sufficient to establish that the defendant was a persistent violentfelony offender (see CPL 60.60 [1]; People v Allen, 4 AD3d 479 [2004];People v Melvin, 279 AD2d 481 [2001]). "Unlike the situation in People v VanBuren (82 NY2d 878), where the certificate of conviction produced by the People identifiedthe previously convicted individual by nothing more than name, in this case the evidence offeredby the People identified [the] defendant by name, date of birth and NYSID number" (People vRichards, 266 AD2d 714, 715-716 [1999]).
The defendant's contention that the County Court violated his constitutional rights under theprinciples set forth in Apprendi v New Jersey (530 US 466 [2000]) when it sentencedhim as a persistent violent felony offender is without merit (see People v Bell, 15 NY3d935 [2010]; People v Leon, 10 NY3d 122, 126 [2008], cert denied 554 US 926[2008]; People v Alvarez, 76 AD3d 1098 [2010]; People v Kelly, 68 AD3d 895,896 [2009], affd 16 NY3d 803 [2011]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Covello, J.P., Angiolillo, Dickerson and Roman, JJ., concur.