| People v Wallace |
| 2015 NY Slip Op 04160 [128 AD3d 866] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mark Wallace, Appellant. |
Petito & Petito, LLP, Poughkeepsie, N.Y. (Bruce A. Petito of counsel), forappellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Forman, J.), rendered May 16, 2013, convicting him of criminal possession of acontrolled substance in the third degree (two counts), upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (Greller, J.), of thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement 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. The credibilitydeterminations of the County Court, which saw and heard the witnesses at thesuppression hearing, are entitled to great deference on appeal and should not be disturbedunless clearly unsupported by the record (see People v Bennett, 57 AD3d 912 [2008]; People v Duggins, 1 AD3d450 [2003], affd 3 NY3d 522 [2004]). Here, the defendant's statements,although made before being informed of his Miranda rights (see Miranda vArizona, 384 US 436 [1966]), were spontaneous and were "not triggered by anypolice questioning or other conduct which reasonably could have been expected to elicita declaration from him" (Peoplev Barley, 82 AD3d 996, 996 [2011] [internal quotation marks omitted]; see People v Henderson, 57AD3d 562, 564-565 [2008]; People v Whyte, 47 AD3d 852, 853 [2008]). Moreover, therecord supports the County Court's determinations that the police had reasonablesuspicion to pursue the defendant (see People v Woods, 98 NY2d 627, 628-629[2002]; People v Holland, 4AD3d 375, 376 [2004]; People v Sharpe, 259 AD2d 639 [1999]), and thatthe reasonable suspicion ripened into probable cause to place him under arrest (see People v Cotsifas, 100AD3d 1015 [2012]; Peoplev Shaw, 83 AD3d 1101 [2011]; People v Madrid, 52 AD3d 530, 531 [2008]; People vButler, 293 AD2d 686, 687 [2002]; People v Yizar, 196 AD2d 517, 518[1993]). Contrary to the defendant's contention, the notice provided pursuant to CPL710.30 was sufficient, as it informed the defendant of the sum and substance of hisstatements sought to be introduced at trial (see People v Mais, 71 AD3d 1163, 1166 [2010]; People v Carter, 44 AD3d677, 678 [2007]; People v Coleman, 256 AD2d 473, 474 [1998]).
The defendant's contention that the County Court should have suppressed certainphysical evidence is unpreserved for appellate review (see CPL 470.05 [2];People v Walters, 120 [*2]AD3d 1272, 1273[2014]; People v Vann, 92AD3d 702 [2012]). In any event, this contention is without merit (see People vWade, 137 AD2d 638, 638-639 [1988]; People v Williams, 123 AD2d 652,653 [1986]; People v Brown, 40 AD2d 527, 527-528 [1972]).
Contrary to the defendant's contention, the County Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371, 377 [1974]) reflected a proper balancebetween the prejudicial effect of his prior convictions and their probative value on theissue of his credibility. The defendant's prior convictions bore directly upon hiscredibility and willingness to place his interests above those of society. These convictionswere not so remote in time as to mandate preclusion, given the length of the defendant'sincarceration between these convictions and the trial of this matter (see People v McLaurin, 33AD3d 819, 820 [2006]; People v Mack, 6 AD3d 551 [2004]; People vPeterson, 262 AD2d 502, 503 [1999]). Further, in prohibiting the prosecutor fromeliciting the underlying facts of the defendant's earlier convictions, the County Courtavoided any undue prejudice to the defendant (see People v Rosado, 115 AD3d 884, 885 [2014]; People v Thompson, 99 AD3d819 [2012]; People vMyron, 28 AD3d 681, 683 [2006]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Kolupa, 13 NY3d786, 787 [2009]; People vLane, 7 NY3d 888, 889 [2006]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict was not against the weight ofthe evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that the evidence presented to the grand jury was legallyinsufficient is not reviewable on this appeal, since the defendant's guilt was provenbeyond a reasonable doubt (see CPL 210.30 [6]; People v Flowers, 95 AD3d1233, 1234 [2012]; Peoplev Oliver, 87 AD3d 1035, 1037 [2011]).
The defendant contends that the prosecutor's peremptory challenges to prospectivejurors based on race violated his rights under the Equal Protection Clause of the 14thAmendment to the United States Constitution (see Batson v Kentucky, 476 US79 [1986]). However, this contention is unpreserved for appellate review as to certainjurors challenged prior to the challenge to juror No. 18 in the second round, as defense counsel never requested explanations for thechallenges exercised by the prosecutor regarding those jurors (see CPL 470.05[2]; People v James, 99 NY2d 264, 271 [2002]; People v Garris, 99 AD3d1018, 1020 [2012]; Peoplev Lugo, 69 AD3d 654 [2010]). In any event, these Batson challengeswere properly denied because the defendant failed to meet his burden of demonstrating aprima facie case of discrimination (see People v Zapata, 98 AD3d 539, 540 [2012]; Peoplev Nunez, 229 AD2d 598 [1996]). As to juror No. 18, the defendant's counsel sought an explanation for the prosecutor'speremptory challenge. After the County Court, in effect, found that the defendantestablished that the prosecutor's explanation was pretextual, it granted defense counsel'sspecific request for an additional peremptory challenge as relief. The defendant's counseldid not object or challenge the court's determination not to seat juror No. 18. As a result, to the extent that the defendant contends on appeal that juror No. 18 should have been seated, that contention is waived (cf. People vLebron, 236 AD2d 423, 424 [1997]).
Contrary to the defendant's contention, the County Court properly allowed theprosecutor to elicit testimony relating to suspected check fraud and a related 911emergency telephone call. The challenged evidence was properly admitted to providebackground information as to why the police pursued and confronted the defendant(see People v Tosca, 98 NY2d 660, 661 [2002]; People v Morris, 89 AD3d1112 [2011], affd 21 NY3d 588 [2013]; People v Johnson, 76 AD3d 1103, 1104 [2010]; People v Jenkins, 49 AD3d780 [2008]). Moreover, the County Court alleviated any potential prejudice to thedefendant by properly instructing the jury as to the limited purpose of the evidence(see People v Tosca, 98 NY2d at 661; People v Morris, 89 AD3d at1113; People v Holden, 82AD3d 1007, 1008 [2011]).
[*3] Thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Chambers, Maltese and Duffy, JJ., concur.