| People v Martinez |
| 2018 NY Slip Op 06034 [164 AD3d 1260] |
| September 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Miguel Martinez, Appellant. |
Christine Moccia, Chappaqua, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Christine DiSalvo andWilliam C. Milaccio of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (RobertA. Neary, J.), rendered March 30, 2016, as amended on July 6, 2016, convicting him of robberyin the first degree, robbery in the second degree, grand larceny in the fourth degree, and criminalpossession of a weapon in the third 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 statements he made to law enforcement officials.
Ordered that the judgment, as amended, is affirmed.
Contrary to the defendant's contention, the police had probable cause to arrest him based onthe statement of his codefendant, who admitted her participation in the crimes for which she andthe defendant were indicted, provided details of the crimes which matched the details instatements made by the victim, and incriminated the defendant (see People v Jackson, 65 AD3d1164, 1165 [2009]; People v Catanzaro, 236 AD2d 418 [1997]).
The defendant knowingly and voluntarily waived his Miranda rights (see Mirandav Arizona, 384 US 436 [1966]) prior to making his statement. Although the police falselyinformed the defendant that there was a video camera in an alley in the vicinity of the crimescene, and that they possessed surveillance video from that video camera that showed thedefendant to be the perpetrator of the subject crimes, the defendant made no showing that thedeception was so fundamentally unfair as to deny him due process (see People v Tarsia,50 NY2d 1, 12 [1980]; People vHolley, 148 AD3d 1605, 1606 [2017]; People v Dishaw, 30 AD3d 689, 690-691 [2006]; People vDickson, 260 AD2d 931, 932 [1999]; People v Jackson, 140 AD2d 458, 459[1988]).
The defendant's allegation that he was intoxicated at the time he confessed did not render hisstatement involuntary. "Intoxication alone is insufficient to render a statement involuntary. Onlywhere it is demonstrated that the defendant was intoxicated to a degree of mania or of beingunable to understand the meaning of his statements is suppression warranted" (People v Benjamin, 17 AD3d 688,689 [2005] [internal citation omitted]). In this case, the defendant failed to establish that he wasintoxicated to such a degree.
[*2] Viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant contends that the Supreme Court erred in permitting the prosecutor to elicittestimony from a police witness that he had seen the defendant "countless numbers of times," andknew him by name. This contention is not preserved for appellate review (see CPL470.05 [2]). In any event, this testimony was relevant to the issue of identity (see People v Vega, 37 AD3d 351,352 [2007]; People v Prescott, 300 AD2d 325 [2002]; People v Johnson, 215AD2d 258 [1995]), and did not deprive the defendant of a fair trial since it did not implicate himin any prior misconduct or uncharged crime (see People v Woody, 9 AD3d 439 [2004]; People v Gomez,253 AD2d 719, 720 [1998]; People v Greeman, 235 AD2d 281, 282 [1997]).
A video recording taken by a store's security cameras (hereinafter the store video) showed thedefendant and the codefendant entering a taxicab in the vicinity of the crime scene shortly afterthe subject crimes occurred. The Supreme Court properly permitted a police witness to identifythe defendant as the man depicted on the store video. The testimony of this witness "served to aidthe jury the jury in making an independent assessment regarding whether the man in the [storevideo] was indeed the defendant" (People v Russell, 79 NY2d 1024, 1025 [1992]; see People v Franzese, 154 AD3d706, 707 [2017]; People vBrown, 145 AD3d 1549 [2016]; People v Daniels, 140 AD3d 1083, 1084 [2016]; People v Ray, 100 AD3d 933[2012]; People v Sanchez, 95 AD3d241, 250 [2012]).
Contrary to the defendant's contention, the store video was properly admitted in evidence attrial. A proper foundation for admission of the store video was established by the testimony ofthe driver of the taxicab, who, after viewing the store video, confirmed that it was his taxicab inthe store video. Further, the store video was authenticated by a detective who testified that hepersonally copied the store video from the store's surveillance system onto a flash drive, verifiedthat the video system was in operation, verified the date and time was accurate on the video, andtestified to the unaltered condition of the store video (see People v Costello, 128 AD3d 848 [2015]; People v Boyd, 97 AD3d 898, 899[2012]; People v Orlando, 61 AD3d1001, 1002 [2009]).
The Supreme Court properly admitted into evidence the tape recording of the victim's 911call under the excited utterance exception to the hearsay rule (see People v Brooks, 71NY2d 877, 878 [1988]; People v Brown, 70 NY2d 513, 518 [1987]).
Finally, the defendant received the effective assistance of counsel (see Strickland vWashington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137, 146-147 [1981]).Scheinkman, P.J., Cohen, Duffy and Iannacci, JJ., concur.