| People v Torres |
| 2019 NY Slip Op 07873 [177 AD3d 579] |
| November 6, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Santos Torres, Appellant. |
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo and MarionTang of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (JohnJ. Toomey, J.), rendered November 13, 2017, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of the defendant's motion to suppress his statements to lawenforcement officials.
Ordered that the judgment is affirmed.
We agree with the County Court's determination, which denied, after aHuntley hearing (see People v Huntley, 15 NY2d 72 [1965]), thesuppression of the defendant's oral and written statements to detectives. The recordestablishes that the defendant knowingly, voluntarily, and intelligently waived his rightsunder Miranda v Arizona (384 US 436 [1966]) prior to making his statements (see People v Capela, 97 AD3d760, 761 [2012]). While the Spanish-speaking defendant's written statement wastranscribed into English by the interviewing detective, the statement was not therebyrendered inadmissible since the detective read it back to the defendant in Spanish beforethe defendant signed and adopted the statement as his own (see People v Mora, 57 AD3d571 [2008]; People v Fabricio, 307 AD2d 882, 883 [2003], affd 3NY3d 402 [2004]).
The defendant's further contentions regarding the County Court's determinationdeclining to suppress his statements are unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. The defendant's contention that heshould have been examined by a doctor prior to the administration of Mirandawarnings (see Miranda v Arizona, 384 US 436 [1966]) is unavailing. The recorddemonstrates that the defendant was lucid and coherent during the interview and gave noindication that he would have been unable to comprehend "the immediate import of [theMiranda] warnings" (People v Williams, 62 NY2d 285, 289 [1984];see People v Capela, 97 AD3d at 761). Furthermore, there is no merit to thedefendant's contention that his statements should have been suppressed because lawenforcement officials failed to electronically record his waiver (see People v Esquerdo, 71AD3d 1424, 1426 [2010]).
Contrary to the defendant's contention, the County Court did not err in failing tocharge the jury on manslaughter in the first degree as a lesser included offense of murderin the second degree, based on the affirmative defense of extreme emotional disturbance(see Penal Law § 125.25 [1] [a]), since the defendant failed torequest that charge (see CPL 300.50 [2]; People v Emiliano, 246 AD2d553, 554 [1998]; People v Goros, 224 AD2d 444 [1996]). Moreover, under thecircumstances of this case, the court was under no obligation to give such a charge, suasponte, where such instruction would interfere with the defendant's trial strategy (see People v Hardy, 166 AD3d645, 647 [2018]).
The defendant's contention that he received ineffective assistance of counsel iswithout merit. On this record, the defendant failed to demonstrate "the absence ofstrategic or other legitimate explanations" for counsel's alleged shortcoming (People vRivera, 71 NY2d 705, 709 [1988]; see People v Caban, 5 NY3d 143, 152 [2005]).
The defendant's contention that the evidence was legally insufficient to support hisconviction of murder in the second degree because the People failed to prove that heacted with intent to kill the victim is unpreserved for appellate review (see CPL470.05 [2]; People vHawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence inthe 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 ofmurder in the second degree beyond a reasonable doubt when considered in light of theCounty Court's charge as given without exception (see People v Ford, 11 NY3d 875, 878 [2008]; People vSala, 95 NY2d 254, 260 [2000]). Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are constrained to weigh the evidence in light ofthe elements of the crime as charged without objection by the defendant (see People v Johnson, 10NY3d 875 [2008]; People vDanielson, 9 NY3d 342, 349 [2007]). Having done so, we are satisfied that theverdict was not against the weight of the evidence. The evidence that the defendantstruck the victim more than 50 times with a machete was more than sufficient to sustainthe verdict of guilt with respect to murder in the second degree (see People v Romero, 7 NY3d633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Scheinkman, P.J., Miller, Maltese and LaSalle, JJ., concur.