| People v Marino |
| 2016 NY Slip Op 00382 [135 AD3d 877] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Leo Marino, Appellant. |
Lynn W. L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (Robert J. Masters, John M.Castellano, Johnnette Traill, and Jill A. Gross-Marks of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Margulis, J.), both rendered September 12, 2012, convicting him of criminal possessionof stolen property in the third degree, unauthorized use of a vehicle in the third degree,criminal mischief in the third degree, and attempted grand larceny in the fourth degreeunder indictment No. 3143/11, upon a jury verdict, and grand larceny in the third degree,criminal possession of stolen property in the third degree, unauthorized use of a vehiclein the third degree, and endangering the welfare of a child (two counts) under indictmentNo. 3213/11, upon a jury verdict, and imposing sentences. The appeals bring up forreview so much of an order of the same court (Paytner, J.), dated March 29, 2012, as,after a hearing, denied that branch of the defendant's omnibus motion which was tosuppress his videotaped statement to law enforcement officials.
Ordered that the judgment under indictment No. 3143/11 is modified, on the law, byvacating the convictions of criminal mischief in the third degree and attempted grandlarceny in the fourth degree, and vacating the sentences imposed thereon; as so modified,the judgment under indictment No. 3143/11 is affirmed, that branch of the defendant'somnibus motion which was to suppress his videotaped statement to law enforcementofficials is granted, the order dated March 29, 2012, is modified accordingly, and thematter is remitted to the Supreme Court, Queens County, for further proceedingsconsistent herewith; and it is further,
Ordered that the judgment under indictment No. 3213/11 is modified, on the law, byvacating the convictions of grand larceny in the third degree and criminal possession ofstolen property in the third degree and vacating the sentences imposed thereon; as somodified, the judgment under indictment No. 3213/11 is affirmed, and the matter isremitted to the Supreme Court, Queens County, for further proceedings consistentherewith.
We agree with the defendant's contention that the hearing court erred in denying thatbranch of his omnibus motion which was to suppress his videotaped statement to lawenforcement officials. The preamble read to the defendant by the detective investigatorfrom the district attorney's office who conducted the pre-arraignment interview, prior toadvising the defendant of [*2]his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]), violated the principles enunciatedin People v Dunbar (24NY3d 304, 316 [2014]), and rendered the subsequent Miranda warnings"inadequate and ineffective" in advising the defendant of his rights (id. at 316; see People v Rivera, 128 AD3d1100, 1101 [2015]). In that statement, the defendant admitted his guilt of the actsunderlying the charges of criminal mischief in the third degree and attempted grandlarceny in the fourth degree under indictment No. 3143/11, with respect to his allegedattempt to steal a vehicle on August 23, 2011. The error in admitting the videotapedstatement is not harmless and requires reversal if, "however overwhelming may be thequantum and nature of other proof, . . . there is a reasonable possibility thatthe [error] might have contributed to the conviction" (People v Crimmins, 36NY2d 230, 240-241 [1975] [internal quotation marks omitted]).
Here, although the other evidence of the defendant's guilt was overwhelming, underthe circumstances of this case, there is a reasonable possibility that the error in admittinghis videotaped statements about the acts underlying the charges of criminal mischief inthe third degree and attempted grand larceny in the fourth degree under indictment No.3143/11 may have contributed to his conviction of those crimes. Further, his videotapedadmissions demonstrated an intent to steal, and there is a reasonable possibility that theymay have contributed to the defendant's conviction of grand larceny in the third degreeand criminal possession of stolen property in the third degree under indictment No.3213/11, relating to his taking of a vehicle on August 16, 2011. Accordingly, a new trialis warranted on those counts (see People v Rivera, 128 AD3d at 1101-1102).
However, with respect to the charges of criminal possession of stolen property in thethird degree and unauthorized use of a vehicle in the third degree under indictment No.3143/11, relating to the defendant's possession of a stolen vehicle on August 10, 2011,there is no reasonable possibility that the admission of the videotaped statement mayhave contributed to the defendant's convictions on those charges. The defendant wasapprehended by the police when he was in possession of that vehicle several days after itwas stolen. The vehicle was visibly damaged, since its mirrors had been removed.Further, the defendant spontaneously admitted to the police that his use of the vehiclewas unauthorized. Similarly, there is no reasonable possibility that the admission of thevideotaped statement may have contributed to the defendant's convictions ofunauthorized use of a vehicle in the third degree and endangering the welfare of a child(two counts) under indictment No. 3213/11, relating to his taking of a vehicle on August16, 2011, with two children inside. In a written statement to the police, the defendantadmitted that he took the vehicle, and his presence in the vehicle was established byDNA evidence.
The defendant's challenges to the proof of guilt are unpreserved for appellate review.In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish beyond a reasonable doubt the defendant's guilt of all charges of which he wasconvicted. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The sentences imposed for the crimes of criminal possession of stolen property in thethird degree and unauthorized use of a vehicle in the third degree under indictment No.3143/11, and unauthorized use of a vehicle in the third degree and endangering thewelfare of a child (two counts) under indictment No. 3213/11, were not excessive(see People v Delgado, 80 NY2d 780 [1992]). With respect to the remainingcounts, in light of the determination herein, the propriety of the sentences imposed withrespect to those counts is academic. The defendant's remaining contentions, includingthose contentions raised in his pro se supplemental brief, are without merit, or do notwarrant reversal. Leventhal, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.