| People v Black |
| 2019 NY Slip Op 03612 [172 AD3d 895] |
| May 8, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marcus Black, Appellant. |
Carol Kahn, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M.Forman, J.), rendered March 30, 2017, convicting him of burglary in the second degree andcriminal possession of stolen property in the fourth degree, upon a jury verdict, and sentencinghim to an indeterminate term of imprisonment of 25 years to life on the conviction of burglary inthe second degree, to run consecutively to an indeterminate term of imprisonment of 2 to 4 yearson the conviction of criminal possession of stolen property in the fourth degree. The appealbrings up for review the denial, after a hearing, of those branches of the defendant's omnibusmotion which were to suppress statements he made to law enforcement officials.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the term of imprisonment imposed on the conviction of burglary in the second degreefrom an indeterminate term of 25 years to life to an indeterminate term of 20 years to life, and byproviding that the sentences shall run concurrently with each other; as so modified, the judgmentis affirmed.
The defendant was charged with burglary in the second degree and criminal possession ofstolen property in the fourth degree. Following a hearing, the County Court denied that branch ofhis omnibus motion which was to suppress statements he made to law enforcement officials.Upon a jury verdict, the defendant was convicted of burglary in the second degree and criminalpossession of stolen property in the fourth degree.
The defendant contends, inter alia, that the County Court erred in denying that branch of hisomnibus motion which was to suppress statements he made to law enforcement officials becausethe People failed to prove beyond a reasonable doubt that his statements were voluntarily madeand because his statements were taken in violation of his right to counsel under the Sixth andFourteenth Amendments to the United States Constitution. The defendant's contentions arewithout merit.
On a motion to suppress a statement on the ground that it was involuntarily made, the Peoplebear the burden of proving voluntariness beyond a reasonable doubt (see People v Thomas, 22 NY3d629, 641 [2014]; People vGuilford, 21 NY3d 205, 208 [2013]; People v Anderson, 42 NY2d 35, 38-39[1977]). The defendant contends that he was deceived by the police into making a statement by,among other things, promises of leniency and misstatements as to the evidence the police alreadypossessed. "[N]ot all deception of a suspect is coercive" (People v Thomas, 22 NY3d at642). Rather, where deception has been employed, the People must prove, under the totality ofthe circumstances—including the means employed and the vulnerability of thedefendant—that the defendant's statements were the product of the defendant's ownchoice, or, put otherwise, that his or her will was not overborne (see id. at 641-642). Inthis respect, "generalized promises of leniency do not create a substantial risk that a defendantmight falsely incriminate himself or herself" (People v Plass, 160 AD3d 771, 773 [2018]; see People v Lugo, 60 AD3d 867,868-869 [2009]). Here, the comments to the defendant by the police did not create a danger of afalse confession, and they were not of such a nature that they would have "overborne" thedefendant's will (People vPosadas-Ruiz, 160 AD3d 773 [2018]; see People v Woods, 93 AD3d 1287, 1288 [2012]; People vLugo, 60 AD3d at 868-869).
The defendant's contentions that either he did not receive Miranda warnings (seeMiranda v Arizona, 384 US 436, 448 [1966]), the warnings were insufficient, or thewarnings should have been repeated, are without merit. We accord deference to a hearing court'scredibility determinations and will not disturb them unless the record does not support them (see People v Wiggins, 146 AD3d995, 995 [2017]). Here, the County Court credited a detective's testimony at the suppressionhearing that he fully administered Miranda warnings to the defendant before questioninghim, and this credibility determination is supported by the record (id.). Moreover, where,as here, a person in police custody was issued Miranda warnings and waived those rightsvoluntarily and intelligently, it is not necessary to repeat the warnings prior to subsequentquestioning within a reasonable time thereafter, so long as the custody has remained continuous(see People v Hall, 145 AD3d915, 916 [2016]; People vLoucks, 125 AD3d 890, 890-891 [2015]; People v Gega, 74 AD3d 1229, 1231 [2010]). The defendant was incustody continuously for the approximately two hours after he received his Mirandawarnings and before he began his statements (cf. People v Zappulla, 282 AD2d 696,697-698 [2001]). Given that time period and the attendant circumstances, it was not necessary forthe police to readminister the warnings (see People v Hall, 145 AD3d at 915-916).Accordingly, we agree with the court's determination that the People met their burden of provingbeyond a reasonable doubt that the defendant's statements to the police were voluntary (seePeople v Loucks, 125 AD3d at 890).
The record does not support the defendant's contention that his statements were taken inviolation of his right to counsel (seegenerally People v Henry, 31 NY3d 364 [2018]).
The defendant's contention regarding the legal sufficiency of the evidence supporting hisconviction of burglary in the second degree is unpreserved for appellate review (see CPL470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, without merit.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 guiltof burglary in the second degree beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004]). Upon reviewing the record here, we are satisfied that the verdict of guilt withrespect to burglary in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Balkin, J.P., Chambers, Cohen and Brathwaite Nelson, JJ.,concur.