| People v Grant |
| 2019 NY Slip Op 01793 [170 AD3d 888] |
| March 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeryl Grant, Appellant. |
Paul Skip Laisure, New York, NY (Jonathan Schoepp-Wong of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (WilliamGarnett, J.), rendered May 12, 2015, convicting him of criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Stephen J. Rooney), of that branch of the defendant's omnibus motionwhich was to suppress statements he made to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was arrested in connection with a shooting that occurred on November 16,2013. Two police officers interviewed the defendant. After the defendant was shownphotographs taken from a surveillance video of him at the scene of the incident, he confessed tobeing the shooter. Following a jury trial, the defendant was convicted of criminal possession of aweapon in the second degree. The defendant appeals from the judgment of conviction, arguingthat the trial court should have suppressed his postarrest statements to law enforcement officials,instructed the jury that false promises had undermined the voluntariness of his statements, andgiven the jury a missing witness charge regarding the police officer who testified at thesuppression hearing but did not testify at trial. The defendant also contends that the surveillancevideo admitted into evidence was not properly authenticated.
" 'At a hearing to suppress statements made to law enforcement officials, the Peoplehave the burden of demonstrating, beyond a reasonable doubt, that the defendant's statementswere voluntary' " (People vPlass, 160 AD3d 771, 772 [2018], quoting People v Johnson, 139 AD3d 967, 969 [2016], affd 31NY3d 942 [2018]; see People v JinCheng Lin, 26 NY3d 701, 719 [2016]; People v Thomas, 22 NY3d 629, 641 [2014]; People vWilliams, 62 NY2d 285, 288-289 [1984]). A hearing court's credibility determinations areentitled to deference and will not be disturbed unless they are unsupported by the record (seePeople v Mateo, 2 NY3d 383, 413 [2004]; People v Johnson, 139 AD3d at 970; People v Hobson, 111 AD3d 958,959 [2013]; People v Baliukonis, 35AD3d 626, 627 [2006]).
Here, the defendant contends that law enforcement officials deceived him by implying thatmaking statements against his penal interest would be to his advantage. However, generalizedpromises of leniency do not create a substantial risk that a defendant might falsely incriminatehimself or herself (see People v Plass, 160 AD3d at 773; People v Lugo, 60 AD3d 867,868-869 [2009]; People v Rufino, 293 AD2d 498, 499 [2002]), and there is nothing inthis record to suggest that the statements made by the law enforcement officials were of a naturethat they would have overborne the defendant's will (see People v Mateo, 2 NY3d at 413;People v Plass, 160 AD3d at 773; People v Johnson, 139 AD3d at 969-970).Therefore, we agree with the Supreme Court's denial of that branch of the defendant's omnibusmotion which was to suppress statements he made to law enforcement officials.
The Supreme Court's jury charge regarding the voluntariness of the defendant's statements tolaw enforcement officials, which was in accordance with the language contained in the patternjury instructions in place at the time, was proper (see CJI2d[NY] Statements[Admissions, Confessions]—Traditional Involuntariness, Expanded Charge on TraditionalInvoluntariness; People v Mateo, 2 NY3d at 416 n 20; People v Prospect, 50 AD3d 1064, 1065 [2008]; People v Lubrano, 43 AD3d 829[2007]).
The defendant's contention that the Supreme Court erred in denying his request for a missingwitness charge is without merit, as the defendant failed to show that the uncalled witness wouldprovide noncumulative testimony (seePeople v Edwards, 14 NY3d 733, 735 [2010]; People v Locenitt, 157 AD3d 905, 907 [2018]; People v Chestnut, 149 AD3d 772,773 [2017]), and defense counsel was permitted to comment during summation on the People'sfailure to call the witness in question (see People v Williams, 5 NY3d 732, 734 [2005]; People vLocenitt, 157 AD3d at 907; Peoplev Barber, 133 AD3d 868, 870 [2015]).
Contrary to the defendant's contention, the surveillance video was properly admitted inevidence at trial. The surveillance video was authenticated by a detective who testified that hepersonally copied the store video from the surveillance system onto a mini-DV recorder, verifiedthat the video system was in operation, testified that the date and time on the video appeared tobe accurate, and testified to the unaltered condition of the video (see People v Martinez, 164 AD3d1260 [2018]; People v Costello,128 AD3d 848 [2015]; People vBoyd, 97 AD3d 898, 899 [2012]; People v Orlando, 61 AD3d 1001, 1002 [2009]). Mastro, J.P.,Balkin, LaSalle and Connolly, JJ., concur.