| People v DeCampoamor |
| 2012 NY Slip Op 00224 [91 AD3d 669] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fernando DeCampoamor, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Doyle, J.),rendered December 4, 2008, convicting him of murder in the first degree and murder in thesecond degree (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 his oral and written statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, his oral and written statements were properlyadmitted into evidence. The totality of the circumstances demonstrated that the defendant'sstatements were made voluntarily (see People v Anderson, 42 NY2d 35, 38 [1977]; People v Gega, 74 AD3d 1229,1231 [2010]). The defendant appeared of his own volition at a police precinct seeking to file acomplaint against a person who, in a televised interview, accused him of committing themurders. He was met by two detectives who asked him if he wanted to accompany them back topolice headquarters to speak with the lead detective about the case. The defendant indicated thathe did, and he rode in the back of the detectives' vehicle unrestrained (see People vD'Amico, 296 AD2d 579 [2002]). Although the interview that ensued was lengthy, that fact,without more, does not render the defendant's statements involuntary (see People v Alexander, 51 AD3d1380, 1381 [2008]). The defendant was advised of and waived his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]) before all questioning and again beforegiving his written statement. He was afforded several breaks, provided food and water, andpermitted to use the bathroom (seePeople v Bryan, 43 AD3d 447, 448 [2007]; People v Hasty, 25 AD3d 740, 741 [2006]). Under thesecircumstances, the lead detective's testimony at the hearing that the defendant never indicated hewas tired and needed a break was not incredible or patently tailored to nullify constitutionalobjections (see People v Rivera, 27AD3d 489, 490 [2006]; People v Curry, 213 AD2d 664 [1995]). Although thedefendant now contends that the police unnecessarily delayed in arraigning him for the purposeof obtaining his statements in violation of CPL 140.20 (1), which bears on the issue ofvoluntariness, the defendant failed to preserve this contention for appellate review, therebydepriving the People of an opportunity to put forth other reasons for the alleged delay inarraignment (see People v Ramos, 99 NY2d 27, 37 [2002]; People v Hayward, 48 AD3d 209,210 [2008]; People v Rumrill, 40AD3d 1273, 1274 [2007]; People vSears, 9 AD3d 472 [2004]; People v Seeber, [*2]4 AD3d 620, 622 [2004], affd 4 NY3d 780 [2005]). In anyevent, "an undue delay in arraignment is but one factor in assessing the voluntariness of aconfession" (People v Williams, 53AD3d 591, 592 [2008]; see Peoplev Gladding, 60 AD3d 1401, 1402 [2009]; People v Prude, 2 AD3d 1318, 1319 [2003]), and, under the totalityof the circumstances, the defendant's statements were not involuntarily made (see People vWilliams, 53 AD3d at 592; People vGause, 38 AD3d 999, 1000 [2007]).
The defendant's contention that the alleged unnecessary delay in his arraignment deprivedhim of the right to counsel is without merit as a "delay in arraignment 'does not cause the right tocounsel to attach automatically' " (People v Ramos, 99 NY2d at 34, quoting People vHopkins, 58 NY2d 1079, 1081 [1983]).
The Supreme Court did not improvidently exercise its discretion in denying the defendant'smotion for a mistrial based on a witness's reference to the defendant being "on parole" (see People v Brown, 76 AD3d532, 533 [2010]). During a sidebar conference, the prosecutor represented that this referencewas to the defendant's release on immigration parole, and not parole from prison. The SupremeCourt suggested that the prosecutor ask a clarifying question. The defendant did not object to theproposed relief. Nor did he object when, after the sidebar conference, the prosecutor asked if thewitness's reference to being on parole related to the defendant's immigration status. Thus, theclarifying question must be deemed to have corrected any error in the witness's testimony to thedefendant's satisfaction (see People v Heide, 84 NY2d 943, 944 [1994]; People v Diggs, 25 AD3d 807, 808[2006]; People v Mitchell, 190 AD2d 758 [1993]).
The Supreme Court also did not improvidently exercise its discretion in denying thedefendant's request for an adjournment in order to interview a potential alibi witness and secureher attendance in court. The defendant failed to show that the witnesses's anticipated testimonywould be favorable to him and not merely speculative, and that he exercised good faith anddiligence in securing the witness's presence at trial (see People v Nunez, 199 AD2d 285[1993]).
The Supreme Court properly refused the defendant's request to charge manslaughter in thefirst degree as a lesser-included offense of murder in the first degree and murder in the seconddegree. Viewing the evidence in the light most favorable to the defendant (see People vMartin, 59 NY2d 704, 705 [1983]), there was no reasonable view of the evidence to supporta finding that the defendant intended to cause serious physical injury to the victims rather than tokill them (see People v Moreno, 16AD3d 438 [2005]; People v Kelly, 221 AD2d 661, 662 [1995], cert denied517 US 1200 [1996]).
The defendant's contention that the sentence imposed by the Supreme Court punished himfor exercising his right to a jury trial rather than accepting a plea offer is without merit. The factthat the sentence imposed after trial was greater than the sentence offered during pleanegotiations is not, standing alone, an indication that the defendant was punished for exercisinghis right to trial (see People vJimenez, 84 AD3d 1268, 1269 [2011]). Furthermore, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Dickerson, J.P., Chambers, Hall andMiller, JJ., concur.