| People v Fuentes |
| 2020 NY Slip Op 04180 [185 AD3d 960] |
| July 22, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose E. Fuentes, Appellant. |
Laurette D. Mulry, Riverhead, NY (Edward E. Smith of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (TimothyMazzei, J.), rendered October 4, 2016, convicting him of manslaughter in the first degree, upon ajury verdict, and sentencing him to a determinate term of imprisonment of 25 years, to befollowed by a period of postrelease supervision of 5 years. The appeal brings up for review thedenial, after a hearing (Mark D. Cohen, J.), of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed upon the conviction of manslaughter in the first degree from adeterminate term of imprisonment of 25 years to a determinate term of imprisonment of 15 years,to be followed by a period of postrelease supervision of 5 years; as so modified, the judgment isaffirmed.
On December 12, 2014, the defendant stabbed the victim once in the chest with a knife. Thevictim was transported by ambulance to the hospital, where he died on January 1, 2015, fromcomplications of the stab wound to the chest with penetration of the left lung, with obesity as acontributory cause of death. At trial, the People admitted into evidence the defendant's oral andwritten statements to the police. In his written statement, the defendant admitted getting into averbal altercation after the victim refused to pay the defendant for certain work the defendant hadperformed, which escalated into a physical altercation once the victim threw a punch at thedefendant. The defendant responded by taking out a knife from his pocket and shoving it towardthe victim. The victim started to run away and the defendant chased after him, eventuallycatching up to the victim and stabbing him. In addition to the defendant's statements, the Peopleintroduced into evidence surveillance videotape showing the defendant chasing the victim.
On appeal, the defendant argues that the hearing court should have suppressed his statementsto law enforcement officials since the police did not provide him with an interpreter to aid in theadministration of Miranda warnings (see Miranda v Arizona, 384 US 436 [1966])and that he was deprived of the effective assistance of counsel at the suppression hearing whenhis attorney failed to call a witness who would have testified as to his lack of English languageproficiency, and at trial when his attorney failed to request a jury charge on the voluntariness ofhis statements. The defendant also contends that the County Court improvidently exercised itsdiscretion in concluding that the surveillance videotape proffered by the prosecution wasproperly authenticated, and therefore, admissible. The defendant further argues that the evidencewas legally and factually insufficient to support the jury's finding that he intended to causeserious physical injury and to disprove his justification defense, and that the sentence imposedwas excessive.
"[O]n a motion to suppress inculpatory statements, the defendant bears the burden ofpersuasion, but the People must first establish the legality of the police conduct and thedefendant's waiver" of his or her Miranda rights (People v Kemp, 131 AD2d 265,267 [1987]). "An individual may validly waive Miranda rights so long as the immediateimport of those warnings is comprehended" (People v Williams, 62 NY2d 285, 289[1984]). Here, the evidence adduced at the suppression hearing supported the hearing court'sdetermination that the defendant made statements to law enforcement officials after heknowingly and voluntarily waived his Miranda rights (see People v Valverde, 13 AD3d 658 [2004]). At the crime scene,the defendant complied with the commands of the English-speaking arresting officer, inter alia,to place his hands on the police vehicle and then behind his back, and also answered the officer'sinquiries as to the location of the knife and for his pedigree information. At the policestationhouse, the defendant communicated with a sergeant, in English, as to whether he was onany medication and had any pain or injury (see People v Mora, 36 AD3d 1142, 1143 [2007]; People vZadorozhnyi, 267 AD2d 263, 264 [1999]), and he never stated or in any way indicated to theinterviewing detective that his English was limited (cf. People v Adames, 121 AD3d 507[2014]; People v Santos, 112 AD3d757 [2013]). Further, in addition to a Miranda rights card written in English, thedetective provided the defendant with one written in Spanish, which the defendant signed (seePeople v Rodriguez, 208 AD2d 871 [1994]; cf. People v Santos, 112 AD3d at759) and, when presented with a printed version of his Miranda rights a second time, thedefendant raised no objection. On this record, we agree with the hearing court's determination todeny that branch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials (see People v JinCheng Lin, 26 NY3d 701, 705 [2016]).
The defendant's contention that the evidence was legally insufficient to prove the intentelement of manslaughter in the first degree (Penal Law § 125.20 [1]; see§ 10.00 [10]) and to disprove his justification defense (Penal Law§ 35.15) is unpreserved for appellate review. The defendant's motion for a trialorder of dismissal premised on the medical testimony relating to the victim's cardiomegaly,splenomegaly, and lung disease involved with cocaine was insufficient to preserve his argumentsabout intent and justification (see CPL 470.05 [2]; People v Gray, 86 NY2d 10,20-21 [1995]). 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 toestablish the defendant's intent to cause serious physical injury and to disprove justification(see Penal Law §§ 125.20 [1]; 10.00 [10]; 35.15; People v Barnett, 163 AD3d 700[2018]; People v Simpson, 151AD3d 762 [2017]; People v Thompson, 224 AD2d 646 [1996]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]). Upon reviewing the record, we are satisfied that the verdict ofguilt of manslaughter in the first degree and the rejection of the justification defense were notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record, andthus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d571, 575 n 2 [2011]). Since the defendant's claim of ineffective assistance cannot beresolved without reference to matter outside the record, a CPL 440.10 proceeding is theappropriate forum for reviewing the claim in its entirety, and we decline to review the claim onthis direct appeal (see People vFreeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's contention that the surveillance videotape was not properly authenticated isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the County Courtdid not improvidently exercise its discretion in admitting the surveillance videotape (seePeople v Patterson, 93 NY2d 80, 84 [1999]), as the People presented sufficient evidence thatthe videotape accurately represented the events depicted (see People v Grant, 170 AD3d 888 [2019]; People v Torres, 167 AD3d 665[2018]; People v Martinez, 164AD3d 1260 [2018]; People vCostello, 128 AD3d 848 [2015]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Rivera, J.P., Balkin, Leventhal and Connolly, JJ., concur.