| People v Smith |
| 2021 NY Slip Op 02182 [193 AD3d 770] |
| April 7, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven Smith, Appellant. |
Del Atwell, East Hampton, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Lauren Tan, Marion Tang, and GlennGreen of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (RichardAmbro, J.), rendered March 26, 2019, convicting him of burglary in the first degree (ninecounts), burglary in the second degree, and conspiracy in the fourth degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress certain statements.
Ordered that the judgment is affirmed.
On March 22, 2017, the defendant and three others, armed with three guns and a crowbar,entered a private home and attempted to rob the occupants. Following a jury trial, the defendantwas convicted of burglary in the first degree (nine counts), burglary in the second degree, andconspiracy in the fourth degree.
The defendant waived his contention that he was denied the right to testify before the grandjury by failing to move to dismiss the indictment within five days after his arraignment thereon(see CPL 190.50 [5] [c]; Peoplev Reeves, 180 AD3d 936, 938 [2020]).
On a motion to suppress a statement on the ground that it was involuntarily made, the Peoplebear the burden of proving voluntariness beyond a reasonable doubt (see People v Thomas, 22 NY3d629, 641 [2014]). "To do that, they must show that the statements were not products ofcoercion, either physical or psychological" (id. at 641). The defendant contends that hewas deceived by his coconspirator Kayla Miller, who was acting as an agent of the police, intomaking incriminating statements. However, "not all deception of a suspect is coercive" (id.at 642). Rather, where deception has been employed, the People must prove, under thetotality of the circumstances—including the means employed and the vulnerability of thedefendant—that the defendant's statements were the product of the defendant's ownchoice, or, put otherwise, that his or her will was not overborne (see id. at 641-642).Here, Miller did not coerce the defendant into talking with her, nor did she engage in anybehavior that might have "overborne" the defendant's will (People v Black, 172 AD3d 895, 896 [2019] [internal quotationmarks omitted]).
The defendant's contention that the evidence was not legally sufficient to support his [*2]convictions is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish his guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
Contrary to the defendant's contention, the County Court providently exercised its discretionin precluding him from cross-examining the complainant regarding the passcode to thecomplainant's iPad, as the passcode had no probative value on any material issue (see People v Innab, 182 AD3d142, 146-147 [2020]).
The defendant's contention that the County Court erred by not including an expandedinterested witness charge in its instructions to the jury is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the charge as given was appropriate (see People v Alisuarez, 186 AD3d1391, 1391 [2020]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit. Dillon, J.P., Austin, Duffy andWooten, JJ., concur.