| People v Wright |
| 2015 NY Slip Op 01831 [126 AD3d 1036] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRaymond Wright, Appellant. |
Adam G. Parisi, Schenectady, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedSeptember 26, 2011 in Schenectady County, upon a verdict convicting defendant of thecrimes of burglary in the second degree and grand larceny in the fourth degree.
Defendant was charged in a three-count indictment with burglary in the seconddegree, grand larceny in the fourth degree and menacing in the second degree followingan August 2010 incident wherein defendant entered the home of Kristi Kenyon (hisformer girlfriend)—through a window and in the middle of the night—and,among other things, attempted to stab Kenyon's new boyfriend with what was describedas a serrated kitchen knife. When Kenyon tried to call 911, defendant grabbed her cellphone and fled the scene. After locating another cell phone in the residence, Kenyoncalled for help—reporting that she had been stabbed.[FN*]
Shortly thereafter, defendant was spotted by various members of the SchenectadyPolice Department less than one block from Kenyon's residence and was stopped andquestioned. On [*2]numerous occasions after beingapproached by the officers—and both prior to and after being advised of hisMiranda rights—defendant made certain statements implicating himself inthe attack. Following a jury trial, defendant was convicted of burglary in the seconddegree and grand larceny in the fourth degree and thereafter was sentenced, as a secondviolent felony offender, to 12 years in prison and five years of postrelease supervisionwith respect to the burglary conviction and to a lesser and concurrent term ofimprisonment as to the grand larceny conviction. Defendant now appeals.
We affirm. To the extent that defendant's pro se challenge to his initial detainment bythe police has been preserved for our review, we find it to be lacking in merit. "Probablecause does not require proof sufficient to warrant a conviction beyond a reasonable doubtbut merely information sufficient to support a reasonable belief that an offense has been. . . committed by the person arrested. Accordingly, a police officer mayeffect a warrantless arrest when he or she observes a suspect in close geographic andtemporal proximity to the crime scene and the suspect's appearance matches a sufficientlydetailed description of the perpetrator received by the officer" (People v August, 33 AD3d1046, 1048 [2006], lv denied 8 NY3d 878 [2007] [internal quotation marksand citations omitted]; seePeople v Robinson, 101 AD3d 1245, 1245-1246 [2012], lv denied 20NY3d 1103 [2013]). Here, while en route to Kenyon's residence in response to her 911call, officers spotted defendant—whose description and clothing matched thatprovided by Kenyon—less than one block from Kenyon's residence. Accordingly,we are satisfied that defendant's arrest was supported by probable cause.
Defendant next contends that this matter must be remitted for resolution of hissuppression motion. We disagree. The record reflects that the underlying Huntleyhearing was conducted by a judicial hearing officer pursuant to CPL 255.20 (4), whorecommended that defendant's motion be denied in all respects. Not long after thejudicial hearing officer's report was issued, this matter was removed from County Courtto Supreme Court—apparently without either court formally "determin[ing] themotion" within the meaning of the statute (CPL 255.20 [4]). However, "[a] court's failureto expressly rule on a motion is deemed a denial thereof" (People v Ashley, 89 AD3d1283, 1284 [2011], lv denied 18 NY3d 955 [2012]; see People v Ott, 83 AD3d1495, 1497 [2011]). Moreover, prior to jury selection, defense counsel expressed hisconcerns regarding "the results" of the Huntley hearing and the correspondingadmissibility of certain of defendant's statements, thereby evidencing an understandingthat the subject motion had (at least effectively) been denied. Under these circumstances,remittal is not warranted.
As to the admissibility of the statements, defendant contends that Supreme Courterred in admitting into evidence certain statements that he made to members of theSchenectady Police Department (1) when he initially was approached by the police nearthe scene of the crime, (2) while he was being transported to the police station in a patrolvehicle, (3) after he was advised of his Miranda warnings at the police station andinterviewed, and (4) after he invoked his right to counsel. Preliminarily, a review of thetrial transcript reveals that defendant did not object to the admission of any of the nowchallenged statements and, therefore, we find this issue to be unpreserved for our review(see CPL 470.05 [2]; People v Devers, 82 AD3d 1261, 1262 [2011], lvdenied 17 NY3d 794 [2011]; People v Perkins, 24 AD3d 890, 891 [2005], lvdenied 6 NY3d 816 [2006]). In any event, we are satisfied—upon reviewingthe record—that the contested statements either were not the product of a custodialinterrogation, were spontaneous or represented a voluntary statement made following avalid waiver of defendant's Miranda rights (see People v Kenyon, 108 AD3d 933, 935-936 [2013],lv denied 21 NY3d 1075 [2013]). Moreover, even if we were to otherwise findmerit to defendant's argument on this point, we would deem any error in this regard to beharmless in light of the overwhelming evidence of his guilt (see e.g. People v Rodriguez, 55AD3d 351, 351-352 [2008], lv denied 12 NY3d 762[*3][2009]; People v Jones, 47 AD3d 446, 446 [2008], lvdenied 10 NY3d 841 [2008])—most notably, the testimony offered by Kenyonand her new boyfriend as to defendant's actions on the morning in question.
As a final matter, defendant contends that he was deprived of a fair trial because thejury was permitted to view that portion of the interrogation video wherein defendantinvoked his right to counsel. Although there is no question that "[a] defendant'sinvocation of his [or her] right . . . to counsel . . . cannot beused against him [or her] during the People's direct case" (People v Hunt, 18 AD3d891, 892 [2005]), defendant—as noted previously—rendered noobjection when the subject video was admitted into evidence, nor did he request that thevideo be redacted in any fashion and/or seek any sort of limiting instruction with respectthereto. Hence, this issue is unpreserved for our review (see People v Demagall, 114AD3d 189, 201-202 [2014], lv denied 23 NY3d 1035 [2014]). In any event,in light of the overwhelming evidence of defendant's guilt, the admission of thisparticular portion of the video constitutes harmless error (see People v Daniels, 115AD3d 1364, 1365 [2014], lv denied 23 NY3d 1019 [2014]; People v Vrooman, 115 AD3d1189, 1190 [2014], lv denied 23 NY3d 969 [2014]). Defendant's remainingcontentions, including his assertion that the People improperly superseded the originalindictment and that he was denied the effective assistance of counsel, have beenexamined and found to be lacking in merit.
Lahtinen, J.P., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:At some point during themelee, Kenyon was struck in the chest with what she initially believed to be a knife. Abroken hammer was recovered at the scene, and a circular bruise—consistent inappearance with the head of a hammer—is apparent in a photo of Kenyon's chesttaken at a local hospital following the incident.