| People v Beer |
| 2017 NY Slip Op 00314 [146 AD3d 895] |
| January 18, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Beer, Appellant. |
Arza Feldman, Uniondale, NY (Steven A. Feldman of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Sarah S.Rabinowitz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Sullivan, J.), rendered August 26, 2014, convicting him of manslaughter in the seconddegree (four counts), reckless driving, and reckless endangerment in the second degree,upon a jury verdict, operating a motor vehicle without a license, upon a nonjury verdict,and aggravated vehicular homicide and operating a motor vehicle while ability impairedby drugs, upon his plea of guilty, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress physical evidence.
Ordered that the judgment is affirmed.
The credibility determinations of a hearing court are accorded deference on appeal,and will not be disturbed unless clearly unsupported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]; People v Norman, 142 AD3d 1107 [2016]; People v Festus, 133 AD3d876, 877 [2015]). Here, the hearing court properly denied that branch of thedefendant's omnibus motion which was to suppress his cell phone based on the testimonyof a New York State Trooper indicating that he recovered the cell phone from the frontseat of the defendant's vehicle pursuant to an inventory search of that vehicle (seePeople v Galak, 80 NY2d 715, 718-719 [1993]; People v Meyers, 80 AD3d 715, 716 [2011]; People v Tandle, 71 AD3d1176, 1178 [2010]; People v Kearney, 288 AD2d 398 [2001]). The hearingcourt's decision to credit the New York State Trooper's testimony, including histestimony that he did not conduct a warrantless search of the contents of the cell phone,is supported by the record and we decline to disturb it (cf. Riley v California, 573US &mdash, 134 S Ct 2473 [2014]; People v Marinez, 121 AD3d 423 [2014]).
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions of manslaughter in the second degree is only partially preserved for appellatereview (see People vMassillon, 137 AD3d 1169, 1169 [2016]; People v Krut, 133 AD3d 781, 783 [2015]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of manslaughter in the second degree. Moreover, in fulfilling ourresponsibility to conduct an independent review of [*2]the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt as to that crime wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the trial court providently exercised itsdiscretion in permitting the People to present certain text messages during theircase-in-chief since the probative value of that evidence outweighed the risk of prejudiceto the defendant (see People v Molineux, 168 NY 264, 291 [1901]; cf. People v Bradley, 20 NY3d128 [2012]; People v Licitra, 47 NY2d 554 [1979]; People v Kenny,175 AD2d 404 [1991]). In addition, the trial court's limiting instruction to the jury servedto alleviate any prejudice resulting from the admission of that evidence (see People v Holden, 82 AD3d1007, 1008 [2011]). In any event, any error in the admission of the text messageswas harmless beyond a reasonable doubt, as there was overwhelming evidence of thedefendant's guilt of the crimes of which he was convicted, and no significant probabilitythat the error contributed to his convictions (see People v Crimmins, 36 NY2d230, 241-242 [1975]).
The defendant's contention that he was deprived of a fair trial by certain statementsmade by the prosecutor during the People's opening statement and summation is notpreserved for appellate review since the defendant either failed to object to the remarks atissue, or made only general objections and failed to request further curative relief whenhis objections were sustained (see CPL 470.05 [2]; People v Young, 141 AD3d551, 552 [2016]). In any event, the defendant's contention is without merit, as thechallenged remarks were either within the broad bounds of permissible rhetoricalcomment, fair comment on the evidence and the reasonable inferences to be drawntherefrom, or responsive to arguments presented in the defense summation (seePeople v Young, 141 AD3d at 552; People v Blue, 136 AD3d 840, 840 [2016]).
"The determination of whether to grant or deny youthful offender status rests withinthe sound discretion of the court and depends upon all the attending facts andcircumstances of the case" (People v Mullings, 83 AD3d 871, 872 [2011] [internalquotation marks omitted]; People v Ortega, 114 AD2d 912, 912 [1985]; seePeople v Ciminera, 202 AD2d 684 [1994]; People v Carter, 143 AD2d 925,926 [1988]). Here, we find no basis for disturbing the Supreme Court's determination todeny youthful offender status (see People v Crew, 114 AD3d 696 [2014]; People vMullings, 83 AD3d at 872; People v Noboa, 280 AD2d 558 [2001];People v Johnson, 220 AD2d 775, 776 [1995]; People v Vera, 206 AD2d494 [1994]). Dillon, J.P., Leventhal, Cohen and Miller, JJ., concur.