Opinion
v, 2020–09485 Ind. No. 413/19
03-15-2023
The PEOPLE, etc., respondent, v. Jacobo ARGUETA–GUARDADO, appellant.
Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Meaghan Powers, Marion Tang, and Glenn Green of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Meaghan Powers, Marion Tang, and Glenn Green of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered November 17, 2020, convicting him of rape in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Karen M. Wilutis, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of rape in the second degree and endangering the welfare of a child for engaging in sexual intercourse with a person less than 15 years old at the defendant's home in 2018.
Contrary to the defendant's contention, the County Court properly determined that his statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights twice (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ; People v. Cooke, 299 A.D.2d 419, 420, 750 N.Y.S.2d 103 ). The evidence presented at the suppression hearing demonstrated that a detective read the Miranda rights in Spanish to the Spanish-speaking defendant, who confirmed that he understood the rights read to him (see People v. Garcia, 199 A.D.3d 701, 702, 156 N.Y.S.3d 411 ; People v. Alvarenga, 190 A.D.3d 762, 762, 135 N.Y.S.3d 860 ).
The defendant failed to preserve for appellate review his contention that his statements should have been suppressed because the police violated ( Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 ) when they orchestrated a ruse to enter his home, then lured him to the police station by claiming that there had been a motor vehicle accident and waited until after he waived his Miranda rights before informing him that he was being arrested for rape (see People v. Buchannan, 181 A.D.3d 615, 616, 118 N.Y.S.3d 681 ; People v. Wright, 249 A.D.2d 570, 571, 671 N.Y.S.2d 326 ). In any event, the contention is without merit. "The ruse employed by the police to acquire the consent to enter the home and to persuade the defendant to voluntarily accompany them to the police station was not so fundamentally unfair as to constitute a denial of due process" ( People v. Marquez, 302 A.D.2d 477, 478, 754 N.Y.S.2d 890 ; see People v. Amador, 11 A.D.3d 473, 474, 782 N.Y.S.2d 371 ; People v. Rosario, 186 A.D.2d 598, 598–599, 588 N.Y.S.2d 393 ). Moreover, "[s]ince the defendant's arrest was effected outside of his home, ... no Payton issue is presented" ( People v. Rosario, 186 A.D.2d at 598, 588 N.Y.S.2d 393 ; see People v. Roe, 73 N.Y.2d 1004, 1006, 541 N.Y.S.2d 759, 539 N.E.2d 587 ; People v. Williams, 222 A.D.2d 721, 636 N.Y.S.2d 347 ). In addition, "[t]o the extent that the police may have misled the defendant at some point during his detention, the police conduct complained of was not so fundamentally unfair as to have rendered the confessions involuntary or denied the defendant due process" ( People v. Bebeck, 258 A.D.2d 660, 660, 685 N.Y.S.2d 785 ; see People v. Gelin, 128 A.D.3d 717, 719, 8 N.Y.S.3d 424 ). Contrary to the defendant's contention, "[b]efore questioning, the police were under no obligation to inform the defendant of the specific crime they were investigating" ( People v. Myers, 17 A.D.3d 699, 700, 793 N.Y.S.2d 537 ).
The defendant's contention that the People violated ( People v. Trowbridge , 305 N.Y. 471, 113 N.E.2d 841 ) is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the error in admitting a detective's testimony regarding the complainant's identification of the defendant was harmless, as the evidence of identity, including the defendant's inculpatory statements, was so strong that there is " ‘no substantial issue on the point’ " ( People v. Crudup, 197 A.D.3d 656, 659, 153 N.Y.S.3d 114, quoting People v. Malloy, 22 N.Y.2d 559, 567, 293 N.Y.S.2d 542, 240 N.E.2d 37 ; see People v. Marrero, 183 A.D.2d 728, 729, 583 N.Y.S.2d 468 ).
The defendant failed to demonstrate that his attorney was ineffective in not moving to preclude unnoticed (see CPL 710.30 ) identification testimony that the complainant identified the defendant from a Facebook page and for failing to request a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) for a photo array identification procedure. Defense counsel cannot be deemed ineffective for failing to make an objection or motion that would have little chance of success (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ). Here, "[t]he complainant's pretrial identification of the defendant from a photograph [s]he discovered on social media through the use of [her] own smartphone was not the product of a police-arranged procedure" ( People v. Hernandez, 136 A.D.3d 1055, 1055–1056, 25 N.Y.S.3d 615 ; see People v. Morales, 228 A.D.2d 704, 644 N.Y.S.2d 976 ). Consequently, notice pursuant to CPL 710.30 was not required (see People v. Williams, 81 A.D.3d 861, 862, 916 N.Y.S.2d 825 ; People v. Kershaw, 256 A.D.2d 590, 591, 683 N.Y.S.2d 280 ). Further, under the circumstances, defense counsel reasonably could have concluded that a Wade hearing would have been futile (see People v. Aroer, 172 A.D.3d 736, 736–737, 97 N.Y.S.3d 502 ; People v. Avent, 29 A.D.3d 601, 601, 813 N.Y.S.2d 786 ).
The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review, as his general motion to dismiss the indictment at the close of the People's case was not specifically directed at the deficiency now being argued (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Brown, 270 A.D.2d 496, 705 N.Y.S.2d 300 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BRATHWAITE NELSON, J.P., RIVERA, ZAYAS and VOUTSINAS, JJ., concur.