| People v Araujo |
| 2012 NY Slip Op 08322 [101 AD3d 741] |
| December 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v SilviaAraujo, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Condon,J.), rendered January 5, 2010, convicting her of attempted robbery in the second degree,attempted robbery in the third degree, and criminal possession of a weapon in the fourth degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without ahearing, of that branch of the defendant's omnibus motion which was to suppress evidenceobtained pursuant to an eavesdropping warrant.
Ordered that the judgment is affirmed.
The Supreme Court properly denied, without a hearing, that branch of the defendant'somnibus motion which was to suppress evidence obtained pursuant to an eavesdropping warrant.The defendant's conclusory, unsupported assertion that the detective made materially falserepresentations in his affidavit supporting the application for an eavesdropping warrant isinsufficient to trigger the need for a hearing (see Franks v Delaware, 438 US 154, 171[1978]; People v Bavisotto, 179 AD2d 1055 [1992]; People v Maucieri, 125AD2d 600, 601 [1986]).
Contrary to the People's contention, the defendant's contention that the evidence was legallyinsufficient to support her conviction of attempted robbery in the third degree is preserved forappellate review (see CPL 470.05 [2]). Viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), it was legally sufficient toestablish the defendant's guilt of attempted robbery in the second degree (see Penal Law§§ 110.00, 160.10 [1]) and attempted robbery in the third degree (see PenalLaw §§ 110.00, 160.05) beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as tothose crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the conduct of the police was so egregious as to havedeprived her of due process of law is unpreserved for appellate review (see CPL 470.05[2]; cf. CPL 210.40 [1] [e]) and, in any event, is without merit (see People v Din, 62 AD3d 1023[2009]; People v Kubasek, 167 AD2d 424 [1990]; People v Spivey, 151 AD2d521 [1989]; cf. People v Isaacson, 44 NY2d 511 [1978]).[*2]
The defendant's contention that she was deprived of a fairtrial when the Supreme Court admitted certain evidence relating to her involvement inpornography is without merit. Even if the challenged evidence concerned the type of illegal orimmoral conduct that would be prejudicial to the defendant, under the circumstances of this case,the evidence was admissible to establish intent and to complete the narrative of eventssurrounding the charged crimes (see People v Molineux, 168 NY 264 [1901]; People v Jenneman, 37 AD3d 736[2007]; People v Jones, 293 AD2d 489 [2002]; People v Mateen, 227 AD2d 350[1996]). While we agree with the defendant's contention that it was error for the Supreme Courtto admit her statement that she had previously "been around guns," that error was harmlessbeyond a reasonable doubt, since there was overwhelming evidence of the defendant's guilt, andno significant probability that the error contributed to her conviction (see People vCrimmins, 36 NY2d 230, 247 [1975]). The defendant's alternative contention that theSupreme Court should have issued a jury instruction regarding the admissibility of evidence ofprior bad acts is unpreserved for appellate review because she did not request such an instructionat trial (see People v Webb, 1 AD3d542 [2003]), and, in any event, that contention is without merit.
The sentence imposed was neither illegal nor excessive (see People v Suitte, 90AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Dillon, J.P., Florio, Austin andRoman, JJ., concur.