| People v Sands |
| 2018 NY Slip Op 05701 [164 AD3d 613] |
| August 8, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Spencer Sands, Appellant. |
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant, and appellantpro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Danielle M. O'Boyle of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald S.Hollie, J.), rendered April 27, 2015, as amended August 12, 2015, convicting him of murder inthe second degree (two counts), robbery in the first degree (two counts), robbery in the seconddegree (two counts), criminal possession of a weapon in the third degree, and criminal possessionof stolen property in the third degree, after a nonjury trial, and sentencing him, inter alia, toconcurrent indeterminate terms of imprisonment of four to eight years on the convictions ofcriminal possession of a weapon in the third degree and criminal possession of stolen property inthe third degree, to run concurrently with the other sentences imposed. The appeal brings up forreview the denial, after a hearing (Steven Paynter, J.), of those branches of the defendant'somnibus motion which were to suppress his statements to law enforcement officials.
Ordered that the judgment, as amended, is modified, on the law, by vacating the sentencesimposed on the convictions of criminal possession of a weapon in the third degree and criminalpossession of stolen property in the third degree; as so modified, the judgment is affirmed, andthe matter is remitted to the Supreme Court, Queens County, for resentencing on the convictionsof criminal possession of a weapon in the third degree and criminal possession of stolen propertyin the third degree.
The defendant was convicted of fatally stabbing the victim in a vehicle rented by the victim,and taking the vehicle after removing the victim's body from it.
We agree with the Supreme Court's determination to deny that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials. A review ofthe totality of the circumstances (see People v Mateo, 2 NY3d 383, 413 [2004];People v Anderson, 42 NY2d 35, 38 [1977]) demonstrates that the statements werevoluntarily made. The defendant was advised of and waived his Miranda rights (seeMiranda v Arizona, 384 US 436, 444 [1966]) prior to any questioning. Although he wassubjected to a lengthy interrogation, such length, standing alone, was not sufficient to render thestatements involuntary (see People v JinCheng Lin, 26 NY3d 701 [2016]). The questioning was intermittent, with several breakswhich afforded the defendant the opportunity [*2]to sleep insolitude, and, throughout the duration of the interrogation, the defendant was provided with food,drink, and cigarettes (see People v JinCheng Lin, 26 NY3d 701 [2016]; People v DeCampoamor, 91 AD3d 669, 670 [2012]; cf. People v Guilford, 21 NY3d205, 210 [2013]). Moreover, the defendant's contention, raised in his pro se supplementalbrief, that his statements were involuntary because they were induced by trickery is withoutmerit, since there is no indication that the alleged deception was so fundamentally unfair as todeny due process or that a promise or threat was made that could induce a false confession(see People v Tarsia, 50 NY2d 1, 11 [1980]; People v Gelin, 128 AD3d 717, 719 [2015]; People v Jaeger, 96 AD3d 1172,1174 [2012]).
The defendant's contentions that the verdict with respect to criminal possession of stolenproperty in the third degree was improperly recorded and that the evidence of that crime waslegally insufficient are unpreserved for appellate review (see CPL 470.05 [2]; Peoplev Gray, 86 NY2d 10, 19 [1995]). In any event, the trial minutes with respect to the verdictdemonstrated that the defendant was found guilty of criminal possession of stolen property in thethird degree, and the Supreme Court misspoke when it made reference to criminal possession ofstolen property in the fifth degree. Further, viewing the evidence in the light most favorable tothe prosecution (see People v Bleakley, 69 NY2d 490, 495 [1987]), we find that it waslegally sufficient to prove the defendant's guilt of criminal possession of stolen property in thethird degree beyond a reasonable doubt (see Penal Law § 165.50).Moreover, in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d at 495). Upon reviewing the record here, we are satisfied that the verdictwith respect to that count was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]; People v Althorne, 155 AD2d 604 [1989]; People v Delfino, 150 AD2d718 [1989]).
The Supreme Court should not have admitted, over objection, evidence of the defendant's2009 conviction for criminal possession of stolen property, including the underlying fact that thestolen property was a motor vehicle, to demonstrate knowledge and intent to steal the vehicle(see People v Molineux, 168 NY 264, 293 [1901]). Here, the defendant's knowledge andintent could easily be inferred from his possession of the subject vehicle, which was procured byforce. "Generally, '[e]vidence of prior criminal acts to prove intent will often be unnecessary, andtherefore should be precluded even though marginally relevant, where intent may be easilyinferred from the commission of the act itself' " (People v Valentin, 29 NY3d 150, 156 [2017], quoting People vAlvino, 71 NY2d 233, 242 [1987]; cf. People v Bailey, 21 AD3d 383, 384 [2005]). However, as therewas overwhelming evidence of the defendant's guilt, which included his statements to lawenforcement authorities and the fact that he and his companion assumed possession of thevehicle, and no significant probability that the error contributed to the defendant's conviction, theerror was harmless (see People v Crimmins, 36 NY2d 230, 250 [1975]; People v Judd, 96 AD3d 784[2012]).
The prosecutor's summation comment that the evidence "was admitted to disprove thedefendant's claim of self defense," was contrary to the limited purpose for which the priorconviction was admitted in evidence, i.e., the defendant's knowledge that the stolen vehicle wasin fact stolen. In making its Molineux ruling, the Supreme Court explicitly rejected thePeople's claim that that evidence was probative to disprove the defendant's justification defense.However, since the defendant did not object to that comment, the defendant's challenge to thepropriety of that comment is unpreserved for appellate review (see CPL 470.05 [2]).Further, under the circumstances of this case, including the fact that this was a nonjury trial, weconclude that this violation of the court's Molineux ruling did not deprive the defendantof a fair trial (see People v Best, 19NY3d 739 [2012]; People v Dazi, 195 AD2d 571 [1993]).
As the People correctly concede, the sentences imposed on the convictions of criminalpossession of a weapon in the third degree and criminal possession of stolen property in the thirddegree were illegal. Criminal possession of a weapon in the third degree and criminal possessionof stolen property in the third degree are both class D nonviolent felonies (see Penal Law§§ 265.02 [1]; 165.50). The appropriate sentencing range for a class Dnonviolent felony committed by a defendant who is a second violent felony offender, is between2 to 4 years and 3
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Balkin, J.P., Leventhal, Hinds-Radix and Christopher, JJ., concur.