| People v Waters |
| 2018 NY Slip Op 02191 [159 AD3d 1021] |
| March 28, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Waters, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Timothy Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (FernandoCamacho, J.), rendered April 15, 2015, convicting him of murder in the second degree, after anonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing(William J. Condon, J.), of that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that the People failed to establish that his statements to the policewere made voluntarily after he was advised of his Miranda rights (see Miranda vArizona, 384 US 436 [1966]), is unpreserved for appellate review because it was not raisedby defense counsel in support of the defendant's suppression motion before the hearing court(see CPL 470.05 [2]; People v Vasquez, 66 NY2d 968, 970 [1985]; People v Jackson, 105 AD3d 866,868 [2013]; People v Nadal, 57AD3d 574, 574-575 [2008]). In any event, the evidence at the suppression hearingestablished that the defendant was advised of his Miranda rights and that he knowingly,voluntarily, and intelligently waived them (see Miranda v Arizona, 384 US 436 [1966];People v Hall, 145 AD3d 915,916 [2016]; People v Brown, 113AD3d 785, 785 [2014]; People vGega, 74 AD3d 1229, 1231 [2010]).
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 establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]). The People offered expert testimony to rebut thetestimony of the defense expert that, due to a mental disease or defect, the defendant lackedsubstantial capacity to know or appreciate the nature and consequences of his conduct, or that hisconduct was wrong when he committed the crimes (see People v Noll, 82 AD3d 1266, 1266-1267 [2011]; People v Trojan, 73 AD3d 818,819 [2010]; People v Hill, 276 AD2d 716, 716 [2000]). The trial court's rejection of thedefendant's affirmative defense of extreme emotional disturbance was not against the weight ofthe evidence, as there was no evidence either that the defendant was acting under the influence ofan extreme emotional disturbance at the time of the commission of the crime or that a reasonableexplanation or excuse existed for any alleged emotional disturbance (see People v Diaz, 15 NY3d 40, 45[2010]; People [*2]v Roche, 98 NY2d 70, 75-76 [2002];People v Colon, 142 AD3d1100, 1101 [2016]; People vKwas, 96 AD3d 877, 878 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Roman, Sgroi and Cohen, JJ., concur.