| People v Brummel |
| 2013 NY Slip Op 01088 [103 AD3d 805] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Teon Brummel, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered November 22, 2010, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Reichbach, J.), of that branch of the defendant's omnibus motionwhich was to suppress certain statements he made to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of murder in the second degree because the People failed to prove the elementof intent to kill is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 491-492 [2008]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find thatit was legally sufficient to establish the defendant's guilt of that crime beyond areasonable doubt (see People vHollman, 98 AD3d 584, 585 [2012]; People v Norris, 98 AD3d 586 [2012]). Additionally, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). The evidence presented at trialsupported a finding that the defendant was not acting "under the influence of extremeemotional disturbance for which there was a reasonable explanation or excuse" when hekilled the victim (Penal Law § 125.25 [1] [a]; see People v Roman, 84 AD3d 840, 841 [2011]; People v Reynart, 71 AD3d1057 [2010]).
Although certain hearsay statements made by the victim should not have beenadmitted into evidence at the trial (see People v Maher, 89 NY2d 456, 460[1997]; People v Nieves, 67 NY2d 125, 131 [1986]; People v Wlasiuk, 32 AD3d674, 680 n 4 [2006]; seealso People v Roberts, 94 AD3d 1151 [2012]), the error was harmless, as therewas overwhelming evidence of the defendant's guilt and no significant probability thatthe error contributed to his conviction (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Hollman, 98 AD3d at 585).[*2]
The defendant's contention, in effect, that theSupreme Court should have reopened the suppression hearing is unpreserved forappellate review because the defendant did not request this relief before the SupremeCourt (see CPL 470.05 [2]; People v Riley, 79 AD3d 911, 912 [2010]). In any event,the contention is without merit. Moreover, having failed to move to reopen the hearing,the defendant may not rely upon developments during the course of the trial to challengethe suppression ruling (seePeople v Fleming, 65 AD3d 702, 703 [2009]). Based upon the evidence beforeit (see People v Wellington,84 AD3d 984, 985 [2011]; People v Fleming, 65 AD3d at 703-704), thesuppression court properly denied that branch of the defendant's omnibus motion whichwas to suppress certain statements he made to law enforcement officials (see People v Warren, 84 AD3d1125, 1126 [2011]; People v Bell, 131 AD2d 859, 860-861 [1987]).
"The right to effective assistance of counsel is guaranteed by the Federal and StateConstitutions" (People v Rivera, 71 NY2d 705, 708 [1988]; see USConst Sixth Amend; NY Const, art I, § 6; People v Collado, 90 AD3d 672, 672 [2011]). Here, thedefendant was not deprived of the effective assistance of counsel under the New YorkConstitution because, viewing defense counsel's performance in totality, counselprovided meaningful representation (see People v Benevento, 91 NY2d 708, 712[1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Collado, 90AD3d at 673). Further, the defendant was not deprived of the effective assistance ofcounsel under the United States Constitution (see Strickland v Washington, 466US 668 [1984]).
The defendant's contentions raised in point two of his main brief and in his pro sesupplemental brief relating to the issues of whether the admission of certain testimonyand evidence deprived him of a fair trial and violated the Confrontation Clause, andwhether reversal is warranted due to the late disclosure of notations on a "psych report"and the opinion of an expert witness who did not testify at trial, are unpreserved forappellate review and, in any event, without merit. The defendant's remaining contentionsare without merit. Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.