| People v Wende |
| 2014 NY Slip Op 08050 [122 AD3d 884] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Guenter R. Wende, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh ofcounsel; Justin Curtis on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Kahn, J.), rendered February 1, 2012, convicting him of murder in the second degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing (Hinrichs, J.), 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 County Court properly denied that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials. Probable cause toarrest does not require proof beyond a reasonable doubt (see People v Bigelow,66 NY2d 417, 423 [1985]), but, rather, requires "the existence of facts and circumstanceswhich, when viewed as a whole, would lead a reasonable person possessing the sameexpertise as the arresting officer to conclude that an offense has been or is beingcommitted, and that the defendant committed or is committing that offense" (People v Wright, 8 AD3d304, 306 [2004]; see People v Bigelow, 66 NY2d at 423). Here, the evidenceat the suppression hearing supported the hearing court's determination that, at the timethe detectives investigating the stabbing death of the victim approached the defendantand asked to speak with him, it was reasonable for them to conclude, based on all theinformation they gathered during the investigation, that it was more probable than notthat the defendant killed the victim (see People v Capela, 97 AD3d 760, 761 [2012]; Peoplev Wright, 8 AD3d at 307). Thus, the detectives possessed probable cause to arrestthe defendant when they brought him to police headquarters, and his subsequentstatements to them cannot be deemed the fruit of the poisonous tree subject to theexclusionary rule. Moreover, the People established beyond a reasonable doubt that thedefendant's statements to the detectives were made voluntarily and were not coerced bythe detectives' use of physical force (see People v Anderson, 42 NY2d 35, 38[1977]; People v Capela, 97 AD3d at 761; CPL 60.45 [2] [a]).
The defendant's challenge to the legal sufficiency of the evidence supporting hisconviction is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt [*2]beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The County Court providently exercised its discretion in permitting the prosecutor toelicit testimony from a police witness at trial that the defendant refused to take apolygraph examination during his interrogation by detectives. Prior to that witness,defense counsel opened the door to this testimony during his cross-examination ofDetective Susan Nolan, who testified with respect to the defendant's statements to thepolice (see People v Massie, 2 NY3d 179, 184 [2004]; People vMelendez, 55 NY2d 445, 451-452 [1982]).
The County Court providently exercised its discretion in allowing certain autopsyphotographs of the victim to be admitted into evidence. The "sole purpose" of thechallenged photographs was not "to arouse the emotions of the jury and to prejudice thedefendant" (People v Pobliner, 32 NY2d 356, 370 [1973]; see People v Byrd, 116 AD3d875, 876 [2014]). Rather, they were properly admitted to illustrate and corroboratethe testimony of the medical examiner who performed the autopsy (see People v Lynch, 92 AD3d805, 806 [2012]; People vRivera, 74 AD3d 993, 994 [2010]; People v Rhodes, 49 AD3d 668, 669-670 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,85-86 [1982]). Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.