| People v Festus |
| 2015 NY Slip Op 08752 [133 AD3d 876] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Donnell Festus, Appellant. |
Salvatore C. Adamo, New York, N.Y., for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Hinrichs, J.), rendered September 1, 2010, convicting him of murder in the first degree,murder in the second degree, and conspiracy in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that his due process rights were violated by the failure tovideotape his interrogation by the police is unpreserved for appellate review (seeCPL 470.05 [2]) and in any event, without merit (see People v Marsden, 130 AD3d 945, 947 [2015]; People v Thomas, 90 AD3d1080, 1081 [2011]; Peoplev Rodriguez, 68 AD3d 789, 789 [2009]; People v Nelson, 52 AD3d 534, 535 [2008]).
The credibility determinations of the hearing court following a suppression hearingare entitled to great deference on appeal and will not be disturbed unless clearlyunsupported by the record (seePeople v Whyte, 47 AD3d 852, 852-853 [2008]). Here, the hearing courtproperly denied that branch of the defendant's omnibus motion which was to suppress hisstatements to the police based on the testimony of the detective who conducted theinterrogation that the defendant waived his Miranda rights (see Miranda vArizona, 384 US 436 [1966]), never invoked his right to counsel, and made hisstatements voluntarily. There is no basis in the record to disturb the hearing court'sdetermination crediting testimony.
The People's notice of intention to introduce a photo array on which the defendantwrote that he identified someone in the array as an accomplice was sufficient under CPL710.30 (1) (a) to give notice of the People's intention to use, at trial, the defendant'sstatement written on the array (see People v Springer, 221 AD2d 386, 386[1995]).
The Supreme Court's Sandoval ruling (see People v Sandoval, 34NY2d 371, 374-375 [1974]) struck an appropriate balance between the probative valueof certain evidence of the defendant's prior convictions and the risk of prejudice to thedefendant. Furthermore, the defendant [*2]was notdenied a fair trial by the People's summation (see People v Galloway, 54 NY2d396, 401 [1981]).
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348-349 [2007]), we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]). 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 sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,83 [1982]).
The contentions raised in the defendant's pro se supplemental brief concerning thealleged violation of his right to remain silent and the delay in his arraignment areunpreserved for appellate review (see CPL 470.05 [2]), and, in any event, withoutmerit (see People v Williams, 297 AD2d 325, 325 [2002]; People vSprague, 267 AD2d 875, 879 [1999]). The defendant failed to establish that he wasdenied the effective assistance of counsel (see People v Baldi, 54 NY2d 137,146-147 [1981]). Eng, P.J., Balkin, Cohen and Duffy, JJ., concur.