| People v Burno |
| 2015 NY Slip Op 05956 [130 AD3d 747] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Burno, Appellant. |
Leslie W. Rubin, Floral Park, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Yael V. Levy and JosephMogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered September 10, 2013, convicting him of criminal possession of aweapon in the second degree, criminal possession of a weapon in the fourth degree, andassault in the second degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Honorof, J.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court's determination that hisconsent to the search of his residence was voluntarily given and was not the product ofcoercion was supported by the evidence at the suppression hearing (see People vGonzalez, 39 NY2d 122, 128 [1976]; People v Edwards, 46 AD3d 698, 699 [2007]; People v Gittens, 34 AD3d693, 694 [2006]). The fact that the defendant was under arrest at the time of theconsent does not preclude a finding that his consent was voluntary (see People vRodriguez, 11 NY2d 279, 287 [1962]; People v Edwards, 46 AD3d at 699).Moreover, the presence of a number of police officers at the scene does not compel theconclusion that the defendant's consent to the search was coerced (see People v Leiva, 33 AD3d1021, 1023 [2006]; People v Buggs, 140 AD2d 617, 618 [1988]).Accordingly, the hearing court properly denied that branch of the defendant's omnibusmotion which was to suppress physical evidence.
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions of criminal possession of a weapon in the second degree and assault in thesecond degree is unpreserved 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 [1983]), we find that itwas legally sufficient to disprove the defendant's justification defense with respect to thecharge of assault in the second degree and establish the defendant's guilt of criminalpossession of a weapon in the second degree and assault in the second degree beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see People v Danielson, 9 NY3d 342 [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, 420[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the [*2]record here, we are satisfied that the verdict of guilt ofthose crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, without merit. Mastro, J.P., Austin,Roman and Sgroi, JJ., concur.