| People v Mack |
| 2011 NY Slip Op 08168 [89 AD3d 864] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CaseyMack, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered May 21, 2009, convicting him of burglary in the second degree and possession of burglar'stools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of those branches of the defendant's omnibus motion which were to suppress physical evidenceand oral statements he made to law enforcement officials.
Ordered that the judgment is affirmed.
The Supreme Court properly denied those branches of the defendant's omnibus motion which wereto suppress physical evidence and oral statements he made to law enforcement officials. The initialencounter between the defendant and the police was lawful from its inception inasmuch as the arrestingofficer had an objective, credible reason to approach the defendant to request information (seePeople v Hollman, 79 NY2d 181 [1992]; People v Davis, 78 AD3d 724, 725 [2010]; People v Hill, 72 AD3d 702 [2010];People v Ferrell, 266 AD2d 560 [1999]). Moreover, contrary to the defendant's contention,under the circumstances, the Supreme Court properly determined that the officer's act of following thedefendant in an attempt to conclude his inquires was unobtrusive and did not serve to limit thedefendant's freedom of movement (see People v Howard, 50 NY2d 583, 592 [1980], certdenied 449 US 1023 [1980]; People vAmuso, 44 AD3d 781, 783 [2007]; People v Grunwald, 29 AD3d 33, 38 [2006]; People v Cruz,292 AD2d 175, 175 [2002]; People v Lopez, 169 AD2d 782, 783 [1991]; cf. People vDickerson, 153 AD2d 897, 899 [1989]). Accordingly, the Supreme Court properly concludedthat the defendant's abandonment of a duffle bag while being followed by the police officer was notprecipitated by illegal police conduct and that branch of the defendant's omnibus motion which was tosuppress physical evidence was properly denied (see People v Davis, 78 AD3d at 725;People v Foster, 302 AD2d 403, 404 [2003]; People v Hughes, 174 AD2d 692[1991]). Furthermore, the Supreme Court [*2]properly denied thatbranch of the defendant's omnibus motion which was to suppress oral statements since the defendantwas not in police custody at the time he made those statements (see People v Taylor, 82 AD3d 1133, 1133-1134 [2011]; see alsoPeople v Yukl, 25 NY2d 585 [1969], cert denied 400 US 851 [1970]).
The defendant's contention that a severance was warranted is unpreserved for appellate review (see People v Sabatino, 41 AD3d 871,871 [2007]; People v Johnson, 224 AD2d 635, 638 [1996]). In any event, the defendant'scontention is without merit, as the defenses asserted by the defendant and the codefendant were not inirreconcilable conflict with each other such that there was a danger that the conflict alone would haveled the jury to infer the defendant's guilt (see People v Mahboubian, 74 NY2d 174, 184[1989]; People v Terry, 78 AD3d1207, 1207 [2010]).
The defendant further contends that he was denied his right to confrontation by the SupremeCourt's admission of certain out-of-court statements made by the codefendant (see Bruton v UnitedStates, 391 US 123 [1968]). This contention is without merit since the challenged statements didnot directly implicate the defendant (see Richardson v Marsh, 481 US 200, 208 [1987]; People v Dickson, 21 AD3d 646, 647[2005]; People v Melendez, 285 AD2d 819, 821 [2001]; People v Johnson, 224AD2d 635 [1996]).
The defendant also contends that the Supreme Court committed reversible error by admitting apolice radio transmission and the tape of the complainant's 911 call since such evidence constitutedinadmissible hearsay which improperly bolstered witness testimony as prior consistent statements. Thedefendant's contention that the Supreme Court erred by admitting the police radio transmission isunpreserved for appellate review (see Peoplev Walker, 70 AD3d 870 [2010]). In any event, both the police radio transmission and thetape of the complainant's 911 call were properly admitted. An out-of-court statement made by awitness which is consistent with that witness's trial testimony is generally inadmissible as hearsay, but itmay be admitted to rebut a claim of recent fabrication—an exception to the hearsay rule (seePeople v Buie, 86 NY2d 501, 510-511 [1995]; see also People v Baker, 23 NY2d 307,323 [1968]; People v Concepcion, 175 AD2d 324, 326 n [1991]). However, if theout-of-court statement qualifies under a separate exception to the rule against hearsay, it may beadmitted notwithstanding the fact that "it might also be a prior consistent statement" (People vBuie, 86 NY2d at 511). Here, the police radio transmission was properly admitted to establishcircumstances relevant to the defendant's arrest (see People v Severino, 44 AD3d 1077 [2007]; People v Isaac,222 AD2d 523 [1995]; People v Thompson, 202 AD2d 454 [1994]), and the complainant's911 call was properly admitted under the excited utterance exception to the hearsay rule (seePeople v Coward, 292 AD2d 630 [2002]; People v Carr, 277 AD2d 246, 247 [2000]).Accordingly, the Supreme Court properly admitted the police radio transmission and the tape of thecomplainant's 911 call (see People v Buie, 86 NY2d at 511). Skelos, J.P., Eng, Austin andMiller, JJ., concur.