| People v Bianca |
| 2012 NY Slip Op 00260 [91 AD3d 1127] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael J.Bianca, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Jon N. Clo of counsel), for respondent.
Stein, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered September 1, 2010, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree (two counts) and reckless endangerment in thesecond degree.
Defendant was indicted on one count of reckless endangerment in the second degree and twocounts of criminal possession of a weapon in the second degree. Following a jury trial, defendantwas convicted as charged and sentenced to an aggregate prison term of 12 years, to be followedby five years of postrelease supervision. Defendant now appeals and we affirm.
The charges arise out of a drive-by shooting that occurred in the early morning hours ofAugust 22, 2009, in the vicinity of Slick's Tavern in the City of Amsterdam, MontgomeryCounty. Witnesses reported seeing two black cars drive by Slick's multiple times, each timefiring at the bar and the people standing outside. A little while later, defendant was picked up bypolice from the Town of Glenville, Schenectady County, with two other men, including JoseMaschio. He was turned over to the Amsterdam Police Department, but was not arrested at thattime. While at the police station, defendant wrote out a statement but refused to sign it. Multipleshell casings and projectiles from at least two weapons were recovered from the crime scene.However, no weapons were ever recovered, no spent shell casings were found in defendant's carand both defendant and Maschio tested negative for gunshot residue later that day.[*2]
Defendant's conviction was not against the weight of theevidence. "A person is guilty of reckless endangerment in the second degree when he [or she]recklessly engages in conduct which creates a substantial risk of serious physical injury toanother person" (Penal Law § 120.20). As relevant here, a person is guilty of criminalpossession of a weapon in the second degree when such person possesses a loaded firearm withintent to use the same unlawfully against another (see Penal Law § 265.03 [1] [b])or when such possession does not take place in such person's home or place of business(see Penal Law § 265.03 [3]). "The presence in an automobile . . . ofany firearm . . . is presumptive evidence of its possession by all persons occupyingsuch automobile at the time such weapon . . . is found" (Penal Law § 265.15[3]).
Here, multiple witnesses placed defendant at Slick's with Maschio, who was wearing adistinctive yellow hat, on the night of the incident. Several of those witnesses testified that analtercation occurred, after which defendant and Maschio left in a black Lexus. They furthertestified that they saw a black car—driven by defendant, with Maschio or someone in ayellow hat firing a weapon from within—return a half-hour later, along with a black DodgeIntrepid. Additionally, in the statement that defendant wrote out at the police station, he indicatedthat, after leaving Slick's, he dropped off two of his companions—not includingMaschio—after which "we" returned to the bar. Defendant argues that the evidencesuggests that two cars were involved, that only two guns were used and that one of those gunswas stationary during the incident. Defendant also points to the testimony of witnesses whoreported seeing pedestrians returning fire at the cars. Defendant contends that this evidenceindicates that shots were only fired from one of the vehicles and that only the second vehicle (theIntrepid) contained physical evidence of shots having been fired from within it. Notwithstandingthe absence of physical evidence of a weapon in defendant's vehicle, the jury apparently creditedthe testimony of the witnesses who observed shots being fired by Maschio from the vehicledriven by defendant. Even if a different verdict would not have been unreasonable, upon our ownreview of the evidence and "[a]ccording appropriate deference to the jury's unique opportunity toview the witnesses, hear the testimony and observe the demeanor of those individuals whotestified, we do not find that its resolution of the credibility issues is against the weight of theevidence" (People v Luck, 294 AD2d 618, 619 [2002], lv denied 98 NY2d 699[2002]; see People v Romero, 7NY3d 633, 643-644 [2006]).
Nor are we persuaded that County Court improperly admitted the identification of defendantas a participant in the crimes by Penny Farquhar, one of the People's witnesses. Initially, wereject defendant's contention that the photographic array presented to Farquhar before trial shouldhave been suppressed as unduly suggestive because defendant's head appeared smaller than theheads of other suspects in the array (seePeople v Smiley, 49 AD3d 1299, 1300 [2008], lv denied 10 NY3d 870 [2008];People v Means, 35 AD3d 975,976 [2006], lv denied 8 NY3d 948 [2007]; People v Boria, 279 AD2d 585, 586[2001], lv denied 96 NY2d 781 [2001]). We are also satisfied that County Court properlydetermined that an independent basis existed for Farquhar's identification of defendant. At acombined Huntley and Wade hearing held on June 2, 2010, the People failed toproduce the officer who conducted the photo array identification. County Court subsequentlyruled that the People had not met their burden of going forward, but did not specifically rule thatthe identification should be suppressed. Instead, the court scheduled an independent sourcehearing, sua sponte, and after the People's examination of Farquhar, found that she had anindependent source and denied defendant's request to suppress her in-court identification of him.
We are of the view that, although County Court found that the People had failed to [*3]establish the reasonableness of the photo array identificationprocedure, inasmuch as the People offered no evidence regarding an independent source on thefirst day of the hearing—and the court did not determine the merits of suchissue—and the second day of the hearing was limited to testimony in that regard, theconduct of a bifurcated Wade hearing did not provide the People with an opportunity totailor the evidence and was, therefore, entirely proper (see People v Havelka, 45 NY2d636, 643 [1978]; People vGragnano, 63 AD3d 1437, 1439 [2009], lv denied 13 NY3d 939 [2010]; Matter of Jonathan V., 55 AD3d273, 279 [2008]). Moreover, County Court's determination that the People had establishedthe existence of an independent source for Farquhar's identification of defendant was fullysupported by the record.
Likewise, County Court properly denied defendant's motion to suppress the written statementhe gave to police. The People concede that defendant had not been Mirandized and that he was incustody when he made such statement. However, Robert Richardson, a detective with theAmsterdam Police Department, testified that defendant offered to provide information regarding,among other things, the second car involved in the drive-by shooting and subsequently showedRichardson and another detective the location of that vehicle. Richardson further testified that,upon their return to the police department, defendant told him "[t]hat he wanted to help himselfin any way that he can." Richardson testified that he then provided defendant with a pen andblank statement forms and left him alone in an interview room. Giving appropriate deference tothe suppression court's credibility determinations (see People v Baggett, 57 AD3d 1093, 1094 [2008]), we agree withthe court's finding that the People met their burden of showing that defendant's written statementwas a voluntary act, as it was part of a pattern of willingness on his part to discuss his conductwith the police (see People vPaulman, 5 NY3d 122, 131 [2005]).[FN*]Thus, we decline to disturb the court's determination that defendant's statement was not a productof custodial interrogation.
Defendant's assertions that he is entitled to a new trial based on the People's failure toprovide him with an incident report, a videotape and a notice of intent to offer his oral statementsat trial are all unavailing. Inasmuch as the incident report was never offered into evidence and itscontents were not discussed at trial, the substance of the report is outside the record and cannotbe considered on appeal (see People v Brown, 233 AD2d 764, 766 [1996], lvdenied 89 NY2d 1009 [1997]).
Defendant also claims that the People failed to disclose a video obtained from a gas stationwhere he indicates in his written statement he stopped to put air in his tires on the night of theincident. However, after viewing the tape during a trial recess, defendant conceded that it did notappear to encompass the relevant time period. Inasmuch as the video does not containexculpatory, material information, it was not Brady material (see People vSantorelli, 95 NY2d 412, 421 [2000]).
Finally, inasmuch as defendant made a timely motion to suppress his oral statements to [*4]Richardson, which County Court thereafter denied, the People'sfailure to comply with the notice requirements of CPL 710.30 (1) is academic (see CPL710.30 [3]; People v Amparo, 73 NY2d 728, 729 [1988]; People v Cobian, 185AD2d 452, 452-453 [1992], lv denied 81 NY2d 838 [1993]).
Defendant's remaining contentions, including that his sentence is harsh and excessive, havebeen examined and are found to be without merit.
Peters, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We note that, althoughRichardson's trial testimony revealed a different sequence of events, defendant did not object tosuch testimony or move to reopen the evidence on the suppression motion, and our review of thesuppression court's decision is limited to evidence presented at the pretrial hearing (seePeople v Dodt, 61 NY2d 408, 417 [1984]).