| People v Santos |
| 2021 NY Slip Op 07563 [200 AD3d 1075] |
| December 29, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Soily Aparicio Santos, Appellant. |
Thomas E. Scott, Amityville, 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 (AnthonySenft, Jr., J.), rendered November 1, 2018, convicting her of attempted murder in the seconddegree, attempted assault in the first degree, attempted assault in the second degree, andendangering the welfare of a child, upon a jury verdict, and sentencing her to a determinate termof imprisonment of 16 years to be followed by a period of 5 years of postrelease supervision onthe conviction of attempted murder in the second degree, a determinate term of imprisonment of8 years to be followed by a period of 3 years of postrelease supervision on the conviction ofattempted assault in the first degree, an indeterminate term of imprisonment of1
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of attempted murder in the second degree froma determinate term of imprisonment of 16 years to be followed by a period of 5 years ofpostrelease supervision, to a determinate term of imprisonment of 10 years to be followed by aperiod of 5 years of postrelease supervision; as so modified, the judgment is affirmed.
The County Court properly denied those branches of the defendant's omnibus motion whichwere to suppress oral and written statements and certain physical evidence seized from thedefendant's apartment. Contrary to the defendant's contention, the record establishes that thedefendant was not in custody while at the hospital, nor when she was subsequently at the policestation, prior to making an inculpatory statement. Under these circumstances, "a reasonableperson, innocent of any crime, would [not] have believed she was in police custody" (Peoplev Delfino, 234 AD2d 382, 383 [1996]; see People v Fox, 123 AD3d 844, 845 [2014]). Moreover, thestatements were voluntarily made after the defendant knowingly, voluntarily, and intelligentlywaived her Miranda rights (Miranda v Arizona, 384 US 436 [1966]; see People v Burgos, 198 AD3d672 [2021]; People v O'Brien,186 AD3d 1406, 1407 [2020]). Further, the court properly found that, under the totality ofthe circumstances, the defendant voluntarily consented to the search of her residence (see People v Evans, 157 AD3d716, 716 [2018]; People vQuagliata, 53 AD3d 670, 671-672 [2008]).
[*2] The County Court providently exercised its discretion in denying the defendant's requestfor a mistrial, and instead striking certain evidence from the record and issuing a curativeinstruction (see People v Ortiz, 54 NY2d 288, 292 [1981]; Hall v Potoker, 49NY2d 501, 505 [1980]; People v Richardson, 175 AD2d 143, 144 [1991]). The jury ispresumed to have followed the curative instruction (see People v Hall, 266 AD2d 160,161 [1999]; People v Coursey, 250 AD2d 351, 351 [1998]).
The defendant's contention that the County Court improvidently exercised its discretion inpermitting a forensic pathologist to testify as an expert is without merit. Contrary to thedefendant's contention "a physician need not be a specialist in a particular field in order to testify,provided that he possesses the requisite knowledge, and the weight to be attached to an expert'sopinion is a matter for the jury" (People v Paun, 269 AD2d 546, 546 [2000]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero,7 NY3d 633 [2006]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Chambers, J.P., Christopher, Zayas and Dowling, JJ.,concur.