| People v Medina |
| 2012 NY Slip Op 01743 [93 AD3d 459] |
| March 8, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Freddy Medina, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J., at suppression hearing;Marcy L. Kahn, J., at jury trial and sentencing), rendered July 1, 2008, as amended November 21,2008, convicting defendant of manslaughter in the first degree, and sentencing him, as a secondviolent felony offender, to a term of 20 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Defendant argues that hisvideotaped statement was tainted by a brief conversation he had with the arresting detective thatallegedly constituted custodial interrogation prior to the administration of Mirandawarnings. However, defendant did not preserve this argument (see People v Tutt, 38NY2d 1011, 1013 [1976]). Defendant made entirely different arguments at the hearing, and hismotion papers were inadequate to raise the specific claim he makes on appeal. Moreover, even ifthe motion papers could be viewed as raising this claim, defendant abandoned the issue by failingto alert the hearing court to that aspect of his motion (see e.g. People v Henriquez, 246AD2d 427 [1998], lv denied 91 NY2d 942 [1998]).
Accordingly, we decline to review this claim in the interest of justice. Further, even assuminga Miranda violation in that initial conversation there was sufficient attenuation so thatdefendant's videotaped statement was not tainted (see People v White, 10 NY3d 286, 291 [2008], cert denied555 US 897 [2008]).
The trial court properly concluded that the People established a sufficient foundation foradmitting defendant's videotaped statement into evidence. The arresting detective had testified atthe suppression hearing, but the People represented that he had apparently been deployedoverseas as a military reservist and was unavailable for trial. The People introduced the videotapethrough the authenticating testimony of a technician. Defendant argued that this was insufficient,and asserted that the detective's testimony was necessary to establish the circumstances leadingup to the videotaped statement so that the jury could assess the statement's voluntariness.
When a defendant moves to suppress a statement, the People have the burden of proving[*2]the statement was voluntarily made at a pretrial hearing(People v Witherspoon, 66 NY2d 973, 974 [1985]). If that burden is met, the statementbecomes admissible at trial. At a trial, the voluntariness of the statement is not at issue unless adefendant raises that issue, and "evidence sufficient to raise a factual dispute has been adducedeither by direct or cross-examination" (People v Cefaro, 23 NY2d 283, 288-289 [1968]).In that case, the court is required to instruct the jury to disregard the statement if it finds thestatement was involuntarily made (CPL 710.70 [3]).
Even assuming, without deciding, that the People were required to go forward at trial withevidence of the statement's voluntariness, we conclude that they met that burden. The videotapedepicts defendant unequivocally waiving his Miranda rights, and there is nothing to castdoubt on the statement's voluntariness. Accordingly, defendant was not entitled, as a preconditionto admission of the statement, to demand that the People prove its voluntariness in any particularway (cf. Witherspoon, 66 NY2d at 974-975).
The trial court also properly declined to give a jury instruction regarding the voluntariness ofthe videotaped statement, because there was insufficient evidence to present a factual dispute onthe issue (see Cefaro, 23 NY2d at 285-289). Contrary to defendant's argument, thevideotape does not support competing inferences as to the statement's voluntariness.
The court properly declined to give a missing witness charge regarding the victim's brother,because there was no evidence that he could have provided material, noncumulative testimony.The trial evidence failed to establish that this witness was in a position to see who stabbed thevictim (see People v Dianda, 70 NY2d 894 [1987]; compare People v Kitching,78 NY2d 532, 538 [1991]). Defendant's argument rests on speculative inferences from theevidence.
We have reviewed certain sealed minutes in camera, and based on that review we rejectdefendant's challenge to the re-presentation of the case to a second grand jury.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias,Catterson, Moskowitz and Román, JJ.