| People v Powell |
| 2015 NY Slip Op 01673 [125 AD3d 1010] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Reginald Powell, Appellant. |
John F. Ryan, White Plains, N.Y. (Salvatore A. Gaetani of counsel), forappellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Hubert, J.), rendered February 28, 2013, convicting him of murder in the first degree,burglary in the second degree, grand larceny in the third degree (two counts), criminalpossession of stolen property in the third degree (two counts), criminal possession of acontrolled substance in the third degree, and criminal possession of a controlledsubstance in the seventh degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly concluded thatthe initial statements he made to law enforcement officials at the police station beforeMiranda warnings were given (see Miranda v Arizona, 384 US 436[1966]) were spontaneous and not triggered by any police questioning or other conductwhich could reasonably have been expected to elicit a declaration from him (see People v Barley, 82 AD3d996 [2011]; People vCastro, 73 AD3d 800, 801 [2010]). The court also properly concluded that thedefendant's subsequent, additional statements to law enforcement officials at the policestation were made after he knowingly and voluntarily waived his Miranda rights(see People v Valverde, 13AD3d 658, 659 [2004]), and were sufficiently attenuated from thepre-Miranda statements he made on the street (see People v Paulman, 5 NY3d122, 130 [2005]), which the court ruled were the result of a custodial interrogationand, thus, inadmissible at trial.
The defendant contends that the evidence was legally insufficient to support hisconviction of murder in the first degree, since the People failed to prove that he actedwith intent to kill the victim, and was legally insufficient to support his conviction ofburglary in the second degree. The defendant's contention regarding the conviction ofmurder in the first degree is not preserved for appellate review, since the defendant failedto specifically challenge the element of intent to kill when he moved for a trial order ofdismissal (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Danielson, 9NY3d 342, 349 [2007]), we find that it was legally sufficient to establish thedefendant's guilt as to those crimes beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to [*2]CPL 470.15 (5), weare satisfied that the verdict of guilt of those crimes was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court should have charged the jury onmanslaughter in the first degree as a lesser-included offense of murder in the first degreeand criminal trespass as a lesser-included offense of burglary in the second degree iswithout merit (see People vCuesta, 103 AD3d 913, 915-916 [2013]; People v Moreno, 16 AD3d 438 [2005]). Viewed in thelight most favorable to the defendant (see People v Martin, 59 NY2d 704, 705[1983]), there is no reasonable view of the evidence which would support findings thatthe defendant committed the lesser, but not the greater, offenses (see generallyCPL 300.50 [1]; People vRivera, 23 NY3d 112, 120-121 [2014]).
The Supreme Court properly precluded the defendant from presenting evidence ofthird-party culpability, since the proposed evidence was based on mere speculation (see People v Gamble, 18 NY3d386, 399 [2012]; People v Primo, 96 NY2d 351, 357 [2001]).
Contrary to the defendant's contention, the Supreme Court's response to the jury'snote regarding clarification of the element of intent as to the murder count wasmeaningful (see CPL 310.30; People v Howard, 61 AD3d 993, 994 [2009]).
The record does not support the defendant's contention that the Supreme Courtimproperly took into consideration uncharged crimes in imposing sentence (seePeople v Dyson, 200 AD2d 756 [1994]). Moreover, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Balkin, J.P., Chambers, Hinds-Radix and Maltese, JJ., concur.