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People v. Fontanez

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 27, 2000
278 A.D.2d 933 (N.Y. App. Div. 2000)

Opinion

December 27, 2000.

Appeal from Judgment of Monroe County Court, Bristol, J. — Rape, 1st Degree.

PRESENT: PIGOTT, JR., P. J., HAYES, WISNER, SCUDDER AND LAWTON, JJ.


Judgment unanimously affirmed.

Memorandum:

Defendant appeals from a judgment convicting him after a jury trial of three counts of rape in the first degree (Penal Law § 130.35), four counts of sexual abuse in the first degree (Penal Law § 130.65, [3]), and other crimes. County Court properly denied defendant `s motion to suppress the showup identifications of defendant by a victim and two witnesses. Defendant was apprehended a short distance from the scene of the crime, and the police conducted the showup with one witness within 10 minutes of the crime and conducted the other two showups within one-half hour of the crime ( see, People v. Ortiz, 90 N.Y.2d 533, 537; People v. Lockwood, 270 A.D.2d 848, 849, lv denied 94 N.Y.2d 949). Although during the last two showups defendant was identified while wearing handcuffs, the evidence supports the determination of the suppression court that the identification procedure was not unduly suggestive ( see, People v. Duuvon, 77 N.Y.2d 541, 545; People v. Sanabria, 266 A.D.2d 41, lv denied 94 N.Y.2d 884; People v. Hendrick, 192 A.D.2d 1100, 1101, lv denied 82 N.Y.2d 755). The court properly denied defendant's request to suppress the in-court identification of any victim who had viewed defendant's photograph in the newspaper or on television, or to require the People to establish that those victims had an independent basis for their identifications. The victims' pretrial identifications of defendant from that photograph were not police-arranged procedures ( see, People v. Morales, 228 A.D.2d 704, lv denied 88 N.Y.2d 1070).

We reject the contention of defendant that the police lacked probable cause to arrest him. The police had reasonable suspicion to stop and detain defendant, who matched the description of the perpetrator and was observed a short distance from the crime scene ( see, People v. Bell,; 270 A.D.2d 916, lv denied 95 N.Y.2d 793; see generally, People v. De Bour, 40 N.Y.2d 210, 223). Within minutes, one of the witnesses positively identified defendant, thus providing the police with probable cause to arrest defendant ( see, People v. Bell, supra; see generally, People v. De Bour, supra, at 223). We reject the further contention of defendant that his statement to the police should have been suppressed because four hours elapsed between the time of his Miranda; warnings and the time of his statement ( see, People v. Baker, 208 A.D.2d 758, lv denied 85 N.Y.2d 905). Once Miranda warnings are issued to a person in police custody and that person voluntarily and intelligently waives his or her rights, repeated warnings are not necessary as long as questioning occurs within a reasonable time and the custody has remained continuous ( see, People v. Kemp, 266 A.D.2d 887, lv denied 94 N.Y.2d 921; People v. Stanton, 162 A.D.2d 987, lv denied 76 N.Y.2d 991). Despite defendant's protestations to the contrary, the record establishes that defendant was able to read the statement that he gave to the police. The fact that the police officer read the statement aloud to defendant upon defendant's request does not establish that defendant's mental capacity was impaired.

The court properly denied defendant's motion to sever the 10-count indictment and grant six separate trials, one for each victim. The offenses were joinable under CPL 200.20 (2) (b) because evidence of one offense would be material and admissible as evidence-in-chief of intent upon the trial of each remaining offense ( see, People v. Moore, ; 275 A.D.2d 969 [decided Sept. 29, 2000]; People v. Flowers, 245 A.D.2d 1088, lv denied 91 N.Y.2d 972; People v. Chapman, 145 A.D.2d 642, 643, lv denied 73 N.Y.2d 1012). Once the offenses were properly joined, "the court lacked statutory authority to sever" ( People v. Bongarzone, 69 N.Y.2d 892, 895; see, People v. Lane, 56 N.Y.2d 1, 7). In any event, the offenses also were "the same or similar in law" (CPL 200.20 [c]), and defendant failed to show good cause for severance ( see, CPL 200.20; People v. Marengo, 95 A.D.2d 851 [decided Oct. 17, 2000]; People v. Chancy, 271 A.D.2d 355 , lv denied 95 N.Y.2d 851; People v. Jones, 236 A.D.2d 846 , lv denied 90 N.Y.2d 859).

The court properly denied defendant `s request for a Frye hearing ( Frye v. United States, 293 F 1013) to determine the admissibility of expert testimony concerning the polymerase chain reaction (PCR) method of DNA testing. "The reliability of the PCR method has gained general acceptance in the scientific community" ( People v. Qi Zhong Lin, 267 A.D.2d 256, 256-257, lv denied 94 N.Y.2d 951; see, People v. Hall, 266 A.D.2d 160, 160-161, lv denied 94 N.Y.2d 948; People v. Hamilton, 255 A.D.2d 693, 69 4, lv denied 92 N.Y.2d 1032). Finally, in light of the heinous nature of the offenses, the sentence is neither unduly harsh nor severe.


Summaries of

People v. Fontanez

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 27, 2000
278 A.D.2d 933 (N.Y. App. Div. 2000)
Case details for

People v. Fontanez

Case Details

Full title:PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. WILBERTO…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 27, 2000

Citations

278 A.D.2d 933 (N.Y. App. Div. 2000)
718 N.Y.S.2d 541

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