| People v Marcelle |
| 2014 NY Slip Op 05999 [120 AD3d 833] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jason Marcelle, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, LindaBreen, and Marie-Claude P. Wrenn-Myers of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered April 17, 2009, convicting him of manslaughter in the firstdegree, endangering the welfare of a child (three counts), and assault in the seconddegree (two counts), after a nonjury trial, and imposing sentence. The appeal brings upfor review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted of manslaughter in the first degree, three counts ofendangering the welfare of a child, and two counts of assault in the second degree, uponevidence that he, on one occasion, poured hot water onto his three-year-old daughter'sfeet and, on another occasion, struck her with enough force to almost completely lacerateher liver, which led to her death.
"The credibility determinations of the Supreme Court following a suppressionhearing are entitled to great deference on appeal and will not be disturbed unless clearlyunsupported by the record" (People v Cuyler, 95 AD3d 900, 900-901 [2012]). Contraryto the defendant's contention in his pro se supplemental brief, the evidence presented atthe suppression hearing supports the Supreme Court's determination that a reasonableperson, innocent of any crime, would not have believed that he was in custody at the timehis statements were made prior to the administration of Miranda warnings(see Miranda v Arizona, 384 US 436, 444 [1966]; People v Yukl, 25NY2d 585, 589 [1969]). Accordingly, the statements were not the product of a custodialinterrogation improperly conducted without the administration of Mirandawarnings, and therefore, the court properly denied that branch of the defendant's omnibusmotion which was to suppress these statements.
The defendant also argues in his pro se supplemental brief that he was not advised byhis counsel or the hearing court that he could testify on his own behalf at the jointMapp and Huntley hearing (see Mapp v Ohio, 367 US 643 [1961];People v Huntley, 15 NY2d 72 [1965]). To the extent the defendant's contentionis based on discussions held off the record between his counsel and himself, [*2]his contention is not properly before this Court, as itconcerns matter dehors the record (see People v Cass, 18 NY3d 553, 556 [2012]). To theextent the defendant's contention is based on any conduct or omission of the hearingcourt, it is without merit. "A trial court does not have a general obligation to sua sponteascertain if the defendant's failure to testify was a voluntary and intelligent waiver of hisright" (People v Dolan, 2AD3d 745, 746 [2003]). There were no exceptional circumstances present whichwould have mandated the hearing court to inquire into the voluntariness of thedefendant's failure to testify (see id. at 746). The defendant also does not point toanything in the record which shows that the court made any rulings or remarks whichwould have had a chilling effect on the defendant's right to testify or which would havegiven the defendant the impression that he could not or should not testify at thehearing.
The defendant's contention in his pro se supplemental brief that the evidence waslegally insufficient to support his conviction of manslaughter in the first degree isunpreserved 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 manslaughter in the firstdegree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 349 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]). Upon reviewing the record here, we aresatisfied that the verdict of guilt of manslaughter in the first degree was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Dillon, Miller and Maltese, JJ., concur.