Opinion
2013–06953 2013–06966 Ind. Nos. 12–284 12–389
05-30-2018
The PEOPLE, etc., respondent, v. Paul GIDDENS, appellant.
Mark Diamond, New York, NY, for appellant, and appellant pro se. Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek and Itamar J. Yeger of counsel), for respondent.
Mark Diamond, New York, NY, for appellant, and appellant pro se.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek and Itamar J. Yeger of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER
Appeals by the defendant from two judgments of the Supreme Court, Rockland County (William A. Kelly, J.), both rendered June 18, 2013, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, under Indictment No. 12–284, and robbery in the first degree, robbery in the second degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, under Indictment No. 12–389, and imposing sentences. The appeals bring up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials, and his separate motion to suppress intercepted communications and evidence derived therefrom.
ORDERED that the judgments are affirmed.
The defendant's contention that the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) deprived him of his constitutional right to a fair trial is unpreserved for appellate review, as he did not raise any constitutional challenge to the Sandoval ruling before the trial court (see CPL 470.05[2] ; People v. Wheelings, 137 A.D.3d 1310, 1311, 28 N.Y.S.3d 435 [citation omitted] ). In any event, the court's Sandoval ruling did not deprive the defendant of a fair trial. Contrary to the defendant's contention, his prior conviction of attempted murder was relevant to his credibility and not just to his propensity to commit the charged offenses in this case, as the prior conviction was a "crime of calculated violence," not of "impulsive violence" ( People v. Sandoval, 34 N.Y.2d at 376–377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; see People v. Lee, 55 A.D.2d 658, 658, 390 N.Y.S.2d 133, 134). As such, it revealed a willingness or disposition of the defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society and was relevant to the defendant's credibility (see People v. Sandoval, 34 N.Y.2d at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ). The court providently exercised its discretion in ruling that, if the defendant testified, the prosecution could cross-examine him on particular facts underlying the prior conviction, as the defendant has not shown that allowing such cross-examination was so prejudicial as to outweigh the probative value of the questioning (see People v. Levy, 290 A.D.2d 565, 565, 736 N.Y.S.2d 618 ; People v. Brathwaite, 254 A.D.2d 365, 365, 681 N.Y.S.2d 544 ; People v. Boseman, 161 A.D.2d 601, 602, 555 N.Y.S.2d 178 ). In light of the length of the defendant's incarceration between the prior conviction in 2001 and the trial in this matter in 2013, the prior conviction was not so remote in time as to mandate preclusion (see People v. Lombardo, 151 A.D.3d 887, 887, 58 N.Y.S.3d 401 ; People v. Wallace, 128 A.D.3d 866, 867, 7 N.Y.S.3d 610 ; People v. Myron, 28 A.D.3d 681, 683, 814 N.Y.S.2d 198 ).
The Supreme Court should have suppressed the defendant's videotaped interrogation by the police, as the People did not prove beyond a reasonable doubt that the defendant's statement was voluntary (see People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 ). The detectives made repeated threats to the defendant that they would tell the codefendant that the defendant had incriminated the codefendant. Thus, the People failed to show that the statement was not the product of psychological coercion and was instead of the defendant's own choice (see id. at 641–642, 985 N.Y.S.2d 193, 8 N.E.3d 308 ). However, this constitutional error was harmless beyond a reasonable doubt, as the proof of the defendant's guilt, without reference to the error, is overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's convictions (see People v. Ellison, 138 A.D.3d 1137, 1138, 28 N.Y.S.3d 900 ).
The defendant's contention that his statement made over the telephone to his girlfriend should have been suppressed is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the Supreme Court correctly admitted into evidence both this statement and the defendant's statement to another individual who had been arrested and was at the police station. These statements were not subject to suppression, as they were not the product of police activity (see People v. Pierre, 241 A.D.2d 559, 560, 661 N.Y.S.2d 645 ; People v. Eldridge, 213 A.D.2d 667, 667–668, 624 N.Y.S.2d 197 ; People v. Shurka, 191 A.D.2d 724, 726–727, 596 N.Y.S.2d 428 ; People v. Murphy, 163 A.D.2d 425, 425, 558 N.Y.S.2d 140 ; People v. Stewart, 160 A.D.2d 966, 966, 554 N.Y.S.2d 687 ; People v. King, 155 A.D.2d 480, 480–481, 547 N.Y.S.2d 140 ).
The defendant failed to preserve for appellate review his present challenge to the legal sufficiency of the evidence supporting his convictions (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). 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 ), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).
The defendant did not preserve for appellate review his arguments regarding the prosecutor's summation, as he failed to object to the challenged comments, request curative instructions, or move for a mistrial on these grounds (see CPL 470.05[2] ; People v. Negron, 150 A.D.3d 764, 765, 54 N.Y.S.3d 410 ). In any event, the prosecutor's summation did not deprive the defendant of a fair trial. The challenged comments were properly based on "the inferences to be drawn" from the trial evidence ( People v. Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273 ), were a fair response to the defendant's arguments in summation that his confession was coerced and that there was no direct evidence of his guilt (see People v. Brisco, 145 A.D.3d 1028, 1029, 45 N.Y.S.3d 474 ; People v. Shelton, 31 A.D.3d 791, 792, 818 N.Y.S.2d 618 ; People v. Vazquez, 122 A.D.2d 820, 820, 505 N.Y.S.2d 700 ; People v. Allen, 121 A.D.2d 453, 454, 503 N.Y.S.2d 143, affd 69 N.Y.2d 915, 516 N.Y.S.2d 199, 508 N.E.2d 934 ), and did not denigrate the defense. To the extent that any single remark was improper, the error was not so egregious as to have deprived the defendant of a fair trial (see People v. Gomez, 153 A.D.3d 724, 726, 61 N.Y.S.3d 70 ). Furthermore, defense counsel's failure to object to those remarks did not constitute ineffective assistance of counsel (see People v. McGowan, 111 A.D.3d 850, 851, 975 N.Y.S.2d 147 ).
Contrary to the defendant's argument raised in his pro se supplemental brief, the detective's affidavits in support of the eavesdropping warrants sufficiently demonstrated that normal investigative procedures were insufficient (see CPL 700.15[4], 700.20[2][d] ). In his affidavit, the detective explained that additional physical surveillance was unlikely to be successful because the officers were unable to conduct surveillance near the defendant's home without being recognized. Additional physical surveillance also would not allow officers to hear the defendant's conversations. The People also established that infiltrating the conspiracy was unrealistic based upon the detective's investigation thus far, and established that arresting the defendant or utilizing search warrants, subpoenas, or grand juries would not likely lead to information on the conspiracy (see People v. Rabb, 16 N.Y.3d 145, 153, 920 N.Y.S.2d 254, 945 N.E.2d 447 ; People v. Gallina, 95 A.D.2d 336, 340, 466 N.Y.S.2d 414 ; People v. Versace, 73 A.D.2d 304, 308, 426 N.Y.S.2d 61 ). Furthermore, the defendant did not make a substantial showing that there were false statements in the detective's affidavits (see Franks v. Delaware, 438 U.S. 154, 155–156, 98 S.Ct. 2674, 57 L.Ed.2d 667 ; People v. Araujo, 101 A.D.3d 741, 741, 955 N.Y.S.2d 166 ).
As to Indictment No. 2012–284, the defendant correctly contends that the record does not establish that he knowingly, intelligently, and voluntarily waived his right to appeal this judgment, as the Supreme Court did not ensure that the defendant understood the consequences of the appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Brown, 122 A.D.3d 133, 139–142, 144, 992 N.Y.S.2d 297 ). However, the defendant's argument that the court did not sufficiently inform him of his right to dispute the use of his prior violent felony conviction to sentence him as a second felony and second violent felony offender in the present cases, is without merit. Since the statutory purposes for filing a predicate statement were satisfied, the court's substantial compliance with CPL 400.15 and 400.21 was sufficient (see People v. Carmello, 114 A.D.2d 965, 965, 495 N.Y.S.2d 230 ; People v. Bryant, 47 A.D.2d 51, 63, 365 N.Y.S.2d 223 ).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit.
LEVENTHAL, J.P., COHEN, MALTESE and BARROS, JJ., concur.