| People v Zelaya |
| 2019 NY Slip Op 02364 [170 AD3d 1206] |
| March 27, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Pablo Zelaya, Appellant. |
Carol E. Castillo, East Setauket, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Caren C. Manzello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (BarbaraKahn, J.), rendered June 18, 2013, convicting him of predatory sexual assault against a child,rape in the first degree, course of sexual conduct against a child in the first degree, sexual abusein the first degree (two counts), and endangering the welfare of a child (two counts), upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
The evidence at the suppression hearing demonstrated that when a police officer arrived atthe complainant's home in response to a report of a domestic incident, the officer asked thedefendant if he knew why the police had been called, and the defendant gave an inculpatoryresponse. Subsequently, after being taken to the police precinct and advised of his Mirandarights, (see Miranda v Arizona, 384 US 436 [1966]), the defendant gave oral andwritten statements to the police. We agree with the County Court's determination that thedefendant's initial pre-Miranda statement to the officer was not the product of a custodialinterrogation (see People vPaulman, 5 NY3d 122, 129 [2005]; People v Huffman, 41 NY2d 29, 33-34[1976]; People v Valentin, 118AD3d 823, 824 [2014]; People vHardy, 77 AD3d 133, 141 [2010]). We also agree with the court's determination that thedefendant was advised of his Miranda rights and that he knowingly, voluntarily, andintelligently waived them at the precinct prior to giving his subsequent statements (seeMiranda v Arizona, 384 US 436 [1966]; People v Hall, 145 AD3d 915, 916 [2016]; People v Brown, 113 AD3d 785,785 [2014]). The evidence at the suppression hearing further demonstrated that an officertranslated the Miranda rights into Spanish for the Spanish-speaking defendant and thatthe defendant's written statement was read back to him in Spanish before he signed and adoptedthe statement as his own (see People vMora, 57 AD3d 571, 572 [2008]; People v Fabricio, 307 AD2d 882, 883 [2003],affd 3 NY3d 402 [2004]). Consequently, we agree with the court's determination to denythat branch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
The defendant's contention that he was deprived of a fair trial based upon a prospectivejuror's comments and the testimony of two witnesses indicating that the defendant wasincarcerated pending trial is unpreserved for appellate review (see CPL 470.05 [2];People v Brehon, 267 AD2d 318, 318 [1999]; People v Jackson, 239 AD2d 433,433 [1997]). In any event, this contention is without merit. Evidence indicating that a defendantwas incarcerated pending trial may impair a defendant's presumption of innocence (seePeople v Jenkins, 88 NY2d 948, 951 [1996]; People v Fabregas, 130 AD3d 939, 940 [2015]; People vMachicote, 251 AD2d 684, 684 [1998]; People v Connor, 137 AD2d 546, 550[1988]). Here, however, neither the prospective juror nor the two witnesses specifically indicatedthat the defendant had been incarcerated pending or during trial. Given that the jury was awarethat the defendant had been handcuffed, placed into custody, and taken to the police precinct, thecomments of the prospective juror and the witnesses' testimony did not suggest that the defendantremained incarcerated pending trial (see People v Fabregas, 130 AD3d at 940). Underthese circumstances, the County Court was not required, sua sponte, to issue a curativeinstruction (see id.; see generallyPeople v Guy, 93 AD3d 877, 879 [2012]).
The defendant's contention that the County Court erred in the manner in which it conductedthe competency hearing for a then eight-year-old witness is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the court properly determined that the witness wascompetent to give sworn testimony (see CPL 60.20 [2]; People v Morales, 80NY2d 450, 452-453 [1992]; People vRamos, 164 AD3d 1267 [2018]; People v Thompson, 119 AD3d 966, 967 [2014]; People v Mendoza, 49 AD3d 559,560 [2008]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event,viewing the evidence in 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 guiltbeyond a reasonable doubt (see People vDanielson, 9 NY3d 342, 349 [2007]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5];People v Danielson, 9 NY3d at 348-349), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant was not deprived of the effective assistance of counsel (see People v Wragg, 26 NY3d403, 412 [2015]; People v Benevento, 91 NY2d 708, 712 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Cohen, Maltese and LaSalle, JJ., concur.