People v Velez-Garriga

2018 NY Slip Op 01945 [159 AD3d 928]

March 21, 2018

Appellate Division, Second Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York,Respondent, v Johnny Velez-Garriga, Appellant.

Paul Skip Laisure, New York, NY (Denise A. Corsí of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, andJoyce Adolfsen of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil J.Firetog, J.), rendered July 29, 2015, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress a statement he made to law enforcement officials.

Ordered that the judgment is affirmed.

The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress a statement he made to the lead detective. Although the defendant's indelible right tocounsel had attached, the defendant's statement was spontaneous and not the result of anyimproper police conduct or questioning (see People v Lynes, 49 NY2d 286 [1980];People v Webb, 224 AD2d 464 [1996]).

The defendant's contention that he was deprived of his right to a fair trial by the improperadmission into evidence of excerpts of recorded telephone calls he made during his detention atRikers Island Correctional Facility is only partially preserved for appellate review (seeCPL 470.05 [2]). In any event, the Supreme Court providently exercised its discretion inadmitting this evidence as proof of consciousness of guilt (see People v Nelson, 112 AD3d 744 [2013]; People v Bramble, 81 AD3d 968[2011]).

The defendant's contention that he was deprived of his right to a fair trial by the improperadmission into evidence of a photograph depicting his tattooed hands is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, to the extent the admission of the photographwas improper, it did not deprive the defendant of a fair trial, and any other error in this regardwas harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Thompson, 34 AD3d 852[2006]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Dillon, J.P., Chambers, Hinds-Radix and Christopher, JJ., concur.