Opinion
03-01-2017
The PEOPLE, etc., respondent, v. Jeffrey GHEE, appellant.
Lynn W.L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Christine DiSalvo, and Tina Grillo of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Christine DiSalvo, and Tina Grillo of counsel), for respondent.
RANDALL T. ENG, P.J., RUTH C. BALKIN, L. PRISCILLA HALL, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered July 9, 2014, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after hearings, of those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement officials and to suppress identification testimony or, alternatively, for a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ).
ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials is granted, and a new trial is ordered on the charge of criminal possession of a weapon in the second degree.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review (see CPL 470.05[2] ; People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; People v. Pitre, 108 A.D.3d 643, 643, 968 N.Y.S.2d 585 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that 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, 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, 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 defendant's contention that the Supreme Court erred in declining to conduct a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) and in admitting the identification testimony of one of the People's witnesses is without merit. The record of the Rodriguez hearing (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 ) supports the court's determination that the witness was sufficiently familiar with the defendant so that his photographic identification was merely confirmatory (see People v. Kelly, 67 A.D.3d 706, 706–707, 886 N.Y.S.2d 899 ; People v. Dash, 50 A.D.3d 914, 915, 855 N.Y.S.2d 257 ; People v. Espinal, 262 A.D.2d 245, 245, 693 N.Y.S.2d 534 ).
At the suppression hearing, a police detective testified that while the defendant was in custody, he administered Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) and took the defendant's written statement. On cross-examination, the detective admitted that 10 minutes prior to taking the defendant's Mirandized written statement, he questioned the defendant without administering Miranda warnings. The written statement itself refers to incriminating statements made by the defendant during the earlier, pre–Miranda questioning. The Supreme Court denied suppression.
"[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuos chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant's rights, and the warned statement must also be suppressed" (People v. Paulman, 5 N.Y.3d 122, 130, 800 N.Y.S.2d 96, 833 N.E.2d 239, quoting People v. Chapple, 38 N.Y.2d 112, 114, 378 N.Y.S.2d 682, 341 N.E.2d 243 ; see People v. Rodriguez, 132 A.D.3d 781, 782, 17 N.Y.S.3d 753 ). Here, the improper unwarned statements made by the defendant gave rise to a subsequent Mirandized written statement as part of a single continuous chain of events. Accordingly, both the oral statement and the written statement should have been suppressed.
Since the evidence of guilt, without reference to the error, on the charge of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) was not overwhelming, the error was not harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Harris, 93 A.D.3d 58, 71, 936 N.Y.S.2d 233 ). Accordingly, the defendant is entitled to a new trial on the charge of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).The defendant's remaining contentions need not be reached in light of our determination.