| People v Herring |
| 2020 NY Slip Op 08080 [189 AD3d 1614] |
| December 30, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Melvin J. Herring, Appellant. |
Mark Diamond, New York, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Elena Tomaro and Marion Tang ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (MartinEfman, J.), rendered November 16, 2017, convicting him of robbery in the first degree (threecounts) and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant was convicted of three counts of robbery in the first degree and one count ofattempted robbery in the first degree. The charges were based on four separate incidents thatoccurred in September 2016.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of therecord (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]).
Contrary to the defendant's contention, the record at the pretrial suppression hearingdemonstrated that the defendant made an intelligent, knowing, and voluntary waiver of hisMiranda rights (see Miranda v Arizona, 384 US 436 [1966]), and that hisstatements to the police were not the product of coercion (see People v Mateo, 2 NY3d at413-414; People v Bethea, 159 AD3d 710 [2018]). The County Court providentlyexercised its discretion in denying the defendant's applications, made during the trial, to reopenthe suppression hearing (see People v Velez, 39 AD3d 38, 42 [2007]).
Contrary to the defendant's contention, the jury's note requesting to view a trial exhibit,which had been admitted into evidence, was ministerial in nature (see People v Swick,158 AD3d 1131, 1132 [2018]). Therefore, the note did not implicate the procedure set forth bythe Court of Appeals in People v O'Rama (78 NY2d 270, 277-278 [1991]), which applieswhere the court receives a substantive written jury communication (see People vNealon, 26 NY3d 152, 161 [2015]).
[*2] Weagree with the County Court's determination to sentence the defendant as a persistent violentfelony offender (see Penal Law § 70.08 [1]). We agree with the court'sfinding, upon the hearing record, that the defendant did not adduce proof sufficient to support hisclaim that his 1996 violent felony conviction was unconstitutionally obtained (see People vMoss, 138 AD3d 761, 762-763 [2016]; People v Quinn, 124 AD3d 916, 916-917[2015]). The defendant was estopped from challenging the constitutionality of his 1976 and 1989violent felony convictions because he did not challenge their constitutionality when they servedas a predicate for his sentencing in connection with the 1996 conviction (see CPL 400.15[8]; 400.16 [2]; People v Moss, 138 AD3d at 762-763).
The defendant's remaining contention is without merit. Austin, J.P., Hinds-Radix, Connollyand Brathwaite Nelson, JJ., concur.