| People v Justiniano |
| 2020 NY Slip Op 04863 [186 AD3d 1257] |
| September 2, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Paul Justiniano, Appellant. |
Janet E. Sabel, New York, NY (Ronald Alfano of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart andAlexander Fumelli of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (MarioF. Mattei, J.), rendered November 15, 2017, convicting him of robbery in the second degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress his statementsto law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, robbery in the second degree. Following acombined Wade/Huntley hearing (see United States v Wade, 388 US 218 [1967];People v Huntley, 15 NY2d 72 [1965]), the Supreme Court, among other things, deniedthat branch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials. After a jury trial, the defendant was convicted of robbery in the seconddegree. Before imposing sentence, the court adjudicated the defendant a second violent felonyoffender.
The defendant's contention that the law enforcement officials' statements made during thecourse of the interrogation negated the waiver of his Miranda rights (see Miranda vArizona, 384 US 436 [1966]) is unpreserved for appellate review because it was not raised asa ground for suppression in his motion papers or at the hearing (see CPL 470.05 [2]). Inany event, the contention is without merit, as the Court of Appeals has rejected the theory that thevalidity of a defendant's waiver of his or her Miranda rights can be vitiated by policemisconduct that occurs after the waiver (see Matter of Jimmy D., 15 NY3d 417, 424 [2010]; People v Weaver, 167 AD3d 1238,1241 [2018]).
" 'At a hearing to suppress statements made to law enforcement officials, the Peoplehave the burden of demonstrating, beyond a reasonable doubt, that the defendant's statementswere voluntary' " (People vPlass, 160 AD3d 771, 772 [2018], quoting People v Johnson, 139 AD3d 967, 969 [2016], affd 31NY3d 942 [2018]). To determine voluntariness, the hearing court must review the totality of thecircumstances to see whether the defendant's will has been overborne (see People vMateo, 2 NY3d 383, 413 [2004]; People v Johnson, 139 AD3d at 969-970). Ahearing court's credibility determinations are entitled to deference and will not be disturbedunless they are unsupported by the record (see People v Mateo, 2 NY3d at 413; People v Grant, 170 AD3d 888,889 [2019]).
The defendant's contention that the law enforcement officials deceived him by implying thatmaking statements against his penal interest would be to his advantage is without merit.Generalized promises of leniency do not create a substantial risk that a defendant might falselyincriminate himself or herself (see People v Plass, 160 AD3d at 773; People v Lugo, 60 AD3d 867,868-869 [2009]), and there is nothing in the record to suggest that the statements made by thelaw enforcement officials were of a nature that they would have overborne the defendant's will(see People v Mateo, 2 NY3d at 413; People v Plass, 160 AD3d at 773).Therefore, we agree with the Supreme Court's denial of that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d at 410; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he was properly adjudicated a second violent felonyoffender previously convicted of a violent felony (see Penal Law § 70.04).The defendant failed to sustain his burden of demonstrating that his previous plea of guilty wasunconstitutionally obtained (see CPL 400.21 [7] [b]; People v Harris, 61 NY2d 9,15-16 [1983]; People v Cintron, 138AD3d 755, 756 [2016]). The record fails to establish that the defendant was deprived of theeffective assistance of counsel during the prior plea proceeding (see Strickland vWashington, 466 US 668, 687-688 [1984]; People v Benevento, 91 NY2d 708,712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Leventhal, J.P., Roman,Cohen and Maltese, JJ., concur.