| People v Bonds |
| 2014 NY Slip Op 04023 [118 AD3d 717] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gentl Bonds, Appellant. |
Stephen C. Cooper, New York, N.Y. (Ronald Cohen of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters andEdward D. Saslaw of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered March 30, 2011, convicting him of robbery in the first degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Buchter, J.), and upon the recommendation of a Judicial HearingOfficer (Cooperman, J.H.O.), of that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted of two counts of robbery in the first degree stemmingfrom separate incidents in which he robbed two women on the street while displayingwhat appeared to be a gun (see Penal Law § 160.15 [4]). At trial,one complainant testified and made an in-court identification of the defendant as herassailant. A second complainant did not testify. However, a third person (hereinafter thethird person), who had encountered the second complainant within minutes of theincident, offered testimony as to certain statements made by the second complainant. Inaddition, the People introduced into evidence the defendant's written and videotapedinculpatory statements to law enforcement officials, as well as a tape of a 911 emergencytelephone call made by the third person.
The Supreme Court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials. Contrary to thedefendant's contention, the record does not support the conclusion that the policeunnecessarily delayed his arraignment for purposes of depriving him of his right tocounsel and obtaining an involuntary confession (see People v Jin Cheng Lin, 105 AD3d 761 [2013]; People v Solorzano, 94 AD3d1153 [2012]; People vDeCampoamor, 91 AD3d 669 [2012]). Indeed, the defendant confessed to hisinvolvement in both incidents within three hours of his arrest. Additionally, the evidencepresented at trial did not establish that the defendant's statements were involuntary(see CPL 60.45, 710.70 [3]; People v Williams, 297 AD2d 325 [2002]).The defendant was not handcuffed during the interrogation, and was given food, water,access to a bathroom, and an opportunity to rest in between questioning (see [*2]People v Jin Cheng Lin, 105 AD3d at 762; People vMarshall, 244 AD2d 508 [1997]; cf. People v Guilford, 21 NY3d 205 [2013]).
The defendant contends that his conviction of robbery in the first degree as to thesecond complainant was not supported by legally sufficient evidence because theadmission of the audio tape of the 911 emergency telephone call and the third person'stestimony regarding the second complainant's statements amounted to a confrontationclause violation (see Crawford v Washington, 541 US 36 [2004]), such that hisconfession lacked sufficient corroboration (see CPL 60.50). The defendant,however, failed to preserve this contention for appellate review. The only issue raisedbefore the Supreme Court in this regard was that it was error to admit into evidence thethird person's testimony since it was barred by New York's common-law rule prohibitingthe admission of hearsay evidence (see People v Kello, 96 NY2d 740 [2001]; People v Marino, 21 AD3d430 [2005]; see also Peoplev Bell, 86 AD3d 618 [2011]; People v Monroe, 49 AD3d 900 [2008]). Contrary to thedefendant's contention, the third person's testimony regarding the statements made by thesecond complainant was properly admitted under the excited utterance exception to thehearsay rule (see People v Brown, 70 NY2d 513 [1987]; People v Jones, 79 AD3d1244 [2010]; People v Hawkins, 193 AD2d 758 [1993]). Further, theadmission of the contents of the 911 emergency telephone call made by the third personwas also proper under the excited utterance exception to the hearsay rule, and did notconstitute a confrontation clause violation in any event (see Davis v Washington,547 US 813, 822, 826-828 [2006]; People v Bradley, 8 NY3d 124, 127-128 [2006]; People v Kenyon, 108 AD3d933 [2013]; People vConyers, 33 AD3d 929 [2006]; People v Marino, 21 AD3d at 430).Thus, contrary to the defendant's contention, his admissions were amply corroborated byindependent evidence that the subject offense was committed (see People v Lapi, 105 AD3d1084 [2013]; CPL 60.50). Accordingly, viewing the evidence in the light mostfavorable to the prosecution, we find that it was legally sufficient to establish thedefendant's guilt of robbery in the first degree as to the second complainant beyond areasonable doubt (see Penal Law § 160.15 [3]; People v Hudgins, 20 AD3d489 [2005]; People v Cowen, 255 AD2d 596 [1998]; People vCastillo, 221 AD2d 554 [1995]).
The defendant's contention that he was deprived of a fair trial as a result of certaincomments made by the prosecutor during the opening statement is unpreserved forappellate review, as the defendant failed to object to the prosecutor's allegedly improperremarks or move for a mistrial or seek curative instructions (see CPL 470.05 [2];People v Bramble, 81 AD3d968 [2011]; People vFranklin, 77 AD3d 676 [2010]; People v Howard, 48 AD3d 481 [2008]). In any event, thecontention is without merit. The prosecutor adequately described in his openingstatement what the People intended to prove, and properly prepared the jury to resolvethe factual issues at the trial (seePeople v Umoja, 70 AD3d 867 [2010]; People v Etoria, 266 AD2d 559[1999]).
Prior to eliciting testimony from the third person, and outside the presence of thejury, the prosecutor informed the defendant and the Supreme Court that he had agreed tothe third person's request that she be allowed to use the prosecutor's name as a personalemployment reference. While it was improper under the circumstances of this case forthe prosecutor to allow the third person to use the prosecutor's name as a personalreference (see People vHarris, 93 AD3d 58, 72 [2012]), this did not deprive the defendant of a fairtrial.
The Supreme Court properly denied the defendant's motion pursuant to CPL 330.30,in which he claimed that he was deprived of a fair trial by the late disclosure of Bradymaterial (see Brady v Maryland, 373 US 83 [1963]; People v Glover, 96 AD3d777, 778 [2012]; People vFord, 91 AD3d 968 [2012]; People v Williams, 34 AD3d 856 [2006]). The material atissue was turned over to the defendant before opening statements were made and insufficient time for him to use it in a meaningful fashion during cross-examination or asevidence during his case (seePeople v Watson, 17 AD3d 385 [2005]; People v Candelario, 260 AD2d391 [1999]). In any event, there was no indication that a reasonable possibility existedthat earlier disclosure of the material might have led to a different outcome of the trial(see People v Gardner, 12AD3d 525 [2004]).
The defendant's remaining contention is without merit. Skelos, J.P., Balkin, Hall andMaltese, JJ., concur.