| People v Sicilianonunez |
| 2019 NY Slip Op 03630 [172 AD3d 912] |
| May 8, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marvin S. Sicilianonunez, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Karla Lato and Marion Tang of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Peter H.Mayer, J.), rendered August 2, 2017, convicting him of burglary in the first degree, criminalsexual act in the first degree, burglary in the second degree, attempted rape in the first degree,and criminal obstruction of breathing or blood circulation (two counts), upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress statements he made to law enforcementofficials.
Ordered that the judgment is affirmed.
The defendant's contention that the grand jury proceedings were defective within themeaning of CPL 210.35 (5) because of the presenting prosecutor's failure to instruct the grandjury on the defense of intoxication is unpreserved for appellate review (see CPL 470.05[2]; People v Brown, 81 NY2d 798, 799 [1993]; People v Forde, 140 AD3d 1085, 1087 [2016]). In any event, thedefendant's contention is without merit. A prosecutor is required to instruct the grand jury as tocomplete defenses, but not as to those defenses that may only reduce the degree or gravity of thecrime (see People v Harris, 98 NY2d 452, 475 [2002]; People v Valles, 62 NY2d36, 38-39 [1984]; People v Tunit,149 AD3d 1110, 1111 [2017]). Here, "[l]ike a mitigating defense, intoxication merelyreduces the gravity of the offense by negating an element" (People v Harris, 98 NY2d at475). Therefore, the grand jury proceedings were not rendered defective by theprosecutor's failure to give an instruction on the defense of intoxication.
After opening statements were made at trial, the defendant moved for a mistrial based uponthe prosecution's late disclosure of a form which, in the defendant's view, tended to establish anintoxication defense that he might have employed during questioning at the pretrialHuntley hearing (see People v Huntley, 15 NY2d 72 [1965]). The remedy for apretrial Rosario violation (see People v Rosario, 9 NY2d 286 [1961]) is notautomatic reversal of the conviction but a new hearing. Retrial is necessary only if, after thathearing, the motion court concludes that the defendant should prevail (see People vBanch, 80 NY2d 610, 619 [1992]; People v Pugh, 258 AD2d 674, 674 [1999]). Here,in response to the late disclosure, the County Court vacated the decision rendered after thepretrial Huntley hearing, directed a second Huntley hearing, offered defensecounsel any reasonable adjournment to investigate the issues, informed the parties that it mightconsider other remedies at a later date, and directed the prosecutor not to have any conversationwith her witness before the second Huntley hearing. Following the secondHuntley hearing, the court adhered to its original determination. Accordingly, we agreewith the court's denial of the defendant's motion for a mistrial.
We agree with the County Court's denial, after the second Huntley hearing, of thatbranch of the defendant's omnibus motion which was to suppress statements he made to lawenforcement officials, as the evidence established that they were voluntarily made after thedefendant knowingly, intelligently, and voluntarily waived his Miranda rights (seeMiranda v Arizona, 384 US 436 [1966]; People v Dayton, 66 AD3d 797, 798 [2009]; People vO'Malley, 282 AD2d 884, 885 [2001]). Although the defendant maintained that he wasintoxicated at the time he made the statements, intoxication alone is insufficient to render astatement involuntary. Only where it is demonstrated that the defendant was intoxicated to adegree of mania or of being unable to understand the meaning of his or her statements issuppression warranted (see People v Schompert, 19 NY2d 300, 305 [1967]; People v Ginsberg, 36 AD3d 627,628 [2007]; People v Benjamin, 17AD3d 688, 689 [2005]). Here, the evidence failed to establish that the defendant wasintoxicated to such a degree.
The defendant's further contention that the County Court should have granted his motion fora mistrial because the late disclosure of the subject form constituted a Brady violation(see Brady v Maryland, 373 US 83 [1963]) also is without merit. The form was providedduring trial in sufficient time for defense counsel to utilize it to cross-examine the subject witnessas to any inconsistency between his testimony and his entries on the form (see People v Gomez, 135 AD3d954, 956 [2016]; People vRobinson, 61 AD3d 784, 784 [2009]). Thus, there was no reasonable possibility thatearlier disclosure might have led to a different outcome at trial (see People v Vilardi, 76NY2d 67 [1990]; People v Bonds,118 AD3d 717, 720 [2014]; Peoplev Gardner, 12 AD3d 525, 526 [2004]; People v Rodriguez, 281 AD2d 644[2001]).
The defendant's contention that the testimony of the complainant's mother was improperlyadmitted into evidence at trial under the prompt outcry exception to the hearsay rule isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the complainant'smother's testimony regarding the complainant's telephone communications following the incidentwas relevant and admissible on the question of whether the complainant was assaulted (see People v Troche, 159 AD3d735, 737 [2018]; People vShepherd, 83 AD3d 1298, 1300 [2011]; People v Terrence, 205 AD2d 301, 302[1994]). Although that portion of the mother's testimony regarding a neighbor's description ofwhat had happened to the complainant constituted hearsay not within the prompt outcryexception (see People v Troche, 159 AD3d at 737; see generally People vMcDaniel, 81 NY2d 10 [1993]), the error in its admission was harmless because there wasoverwhelming evidence of the defendant's guilt and no significant probability that, absent theerror, the defendant would have been acquitted (see People v Crimmins, 36 NY2d 230,241-242 [1975]).
The defendant failed to preserve for appellate review his contention that his convictions werenot supported by legally sufficient evidence (see CPL 470.05 [2]; People v Kolupa, 13 NY3d 786,787 [2009]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Austin, Miller and Maltese, JJ., concur.