| People v Wallace |
| 2013 NY Slip Op 03697 [106 AD3d 1034] |
| May 22, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Maurice Wallace, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Weber, J.), rendered October 5, 2010, convicting him of murder in the second degreeand menacing in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (R. Doyle, J.), of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
Ordered that the judgment is affirmed.
The defendant contends that the Miranda warnings (see Miranda vArizona, 384 US 436 [1966]) given to him before obtaining his statements wereinadequate. This contention is unpreserved for appellate review and, in any event,without merit (see People vLouisias, 29 AD3d 1017, 1018-1019 [2006]; People v Bartlett, 191AD2d 574, 575 [1993]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The record establishes that the defendant's express waiver of his right to be present atsidebar conferences (see People v Antommarchi, 80 NY2d 247 [1992]) wasmade knowingly, voluntarily, and intelligently (see People v Vargas, 88 NY2d363, 375-378 [1996]; People v King, 234 AD2d 391 [1996]). Further, theCounty Court providently exercised its discretion in declining to give a missing witnesscharge (see People vEdwards, 14 NY3d 733 [2010]; People v Savinon, 100 NY2d 192,196-197 [2003]; People v Gonzalez, 68 NY2d 424, 427 [1986]).
Contrary to the defendant's contention, the tape-recorded conversation between a[*2]witness who testified at the trial and the defendantwas relevant to issues at the trial, at least in part. Even if the admission into evidence ofthe entire conversation was error, the error was harmless, as there was overwhelmingevidence of the defendant's guilt and no significant probability that any error in thisregard contributed to his conviction (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Maggette, 244 AD2d 575, 576 [1997]).
The defendant also contends that the County Court erred in directing him to beshackled behind bunting during the trial (see Deck v Missouri, 544 US 622, 630[2005]). This issue is unpreserved for appellate review (see People v Glover, 96 AD3d777, 777 [2012]). In any event, although the County Court may not have articulatedvalid particularized reasons for granting the request to have the defendant shackledduring the trial, any error was harmless (see People v Cruz, 17 NY3d 941, 944 [2011]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, are without merit (see People v Hues, 92 NY2d 413, 419 [1998]; People v Freycinet, 11 NY3d38, 42 [2008]). Dillon, J.P., Chambers, Hall and Hinds-Radix, JJ., concur.