| People v Johnson |
| 2012 NY Slip Op 07694 [100 AD3d 777] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RaulJohnson, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.),rendered January 15, 2010, convicting him of attempted murder in the second degree and assaultin the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing, of the defendant's motion to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
In 2005 the complainant was stabbed in the parking lot of a Shoprite supermarket. In 2007the defendant was represented by counsel in connection with several burglary charges pendingagainst him. At a meeting with his attorney, the police, and a representative of the RocklandCounty District Attorney's office, the defendant was offered leniency on the burglary charges inexchange for information on the 2005 stabbing. At that meeting, the defendant told police that amember of his gang had stabbed the complainant.
Six months later, the police arranged another meeting with the defendant in order to equiphim with a wire and prepare him to be a confidential informant. Two detectives brought thedefendant to the police station for the meeting. The counsel who represented the defendant on theburglary charges and at the proffer agreement meeting was not present. The defendant madeincriminating statements to the detectives relating to the stabbing. The detectives thenadministered Miranda warnings (see Miranda v Arizona, 384 US 436, 444-445[1966]), and obtained a written statement from the defendant in which he inculpated himself inconnection with the stabbing.
There was sufficient evidence to support the hearing court's conclusion that the defendantwas not in custody when he voluntarily accompanied the detectives to the police station (seePeople v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Verrilli, 69 AD3d 963[2010]; People v Pegues, 59 AD3d570, 571 [2009]; People vJordan, 21 AD3d 385 [2005]). Further, the court properly found that the detectives werenot barred from questioning the defendant about the stabbing despite the fact that he wasrepresented by counsel on a pending burglary charge, as the two charges were unrelated (seePeople v Cohen, 90 NY2d 632, 640 [1997]; People v Rivera, 277 AD2d 470 [2000];People v Gehy, [*2]238 AD2d 354 [1997]; People vMarin, 215 AD2d 267 [1995]). Accordingly, the hearing court properly allowed thedefendant's statements to the police to be admitted into evidence.
Contrary to the defendant's contention, the Supreme Court correctly found that certain notestaken by law enforcement officials in the course of investigating the subject incident did notconstitute Rosario material (see People v Rosario, 9 NY2d 286 [1961]), becausetheir contents were not related to the subject matter of the witnesses' testimony at the pretrialsuppression hearing (see People v Bryant, 209 AD2d 630 [1994]; People vJames, 207 AD2d 564 [1994]).
Viewing the evidence in the light most favorable to the prosecution, we find that thedefendant's guilt was established by legally sufficient evidence (see People v Contes, 60NY2d 620, 621 [1983]). In fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observetheir demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied 542 US 946[2004]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633, 643 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Lott, Austin andCohen, JJ., concur.