Opinion
2014-02-19
The PEOPLE, etc., respondent, v. Neil JOHNSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Suzanne H. Sullivan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Suzanne H. Sullivan of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County (Lasak, J.), both rendered February 16, 2011, convicting him of robbery in the first degree (three counts) under Indictment No. 214/2010, and robbery in the first degree (two counts) under Indictment No. 215/2010, upon jury verdicts, and imposing sentences. The appeals bring up for review the denial (Grosso, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements he made to law enforcement officials.
ORDERED that the judgments are affirmed.
Contrary to the defendant's contention in his pro se supplemental brief, the Supreme Court properly denied that branch of his omnibus motion which was to suppress statements he made to law enforcement officials. The hearing court's credibility determinations are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v. Davis, 103 A.D.3d 810, 811, 962 N.Y.S.2d 174;People v. Martinez, 58 A.D.3d 870, 870–871, 873 N.Y.S.2d 128). Here, the record amply supports the court's conclusion that the defendant's oral and written statements were admissible, since the hearing testimony established that the defendant was advised of, and voluntarily waived, his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and did not invoke his right to counsel (see People v. Rushion, 26 A.D.3d 448, 808 N.Y.S.2d 912). Moreover, under the circumstances presented, and since the defendant remained in continuous custody, the police were not required to re-administer the Miranda warnings before questioning the defendant again a few hours later (see People v. Dayton, 66 A.D.3d 797, 798, 887 N.Y.S.2d 184;People v. Hasty, 25 A.D.3d 740, 741, 807 N.Y.S.2d 647;People v. Pierre, 300 A.D.2d 324, 751 N.Y.S.2d 500). The defendant's additional challenges to the suppression ruling raised in his pro se supplemental brief were not presented to the hearing court and, thus, are not properly before us on the appeals (see generally People v. DeCampoamor, 91 A.D.3d 669, 670–671, 936 N.Y.S.2d 256).
The defendant's contention, advanced in his pro se supplemental brief, that, with respect to both convictions, the evidence was legally insufficient to establish that he displayed what appeared to be a firearm (see Penal Law § 160.15[4] ) is unpreserved for appellate review, since he did not make this contention in his motion to dismiss (see CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Middleton, 52 A.D.3d 533, 860 N.Y.S.2d 553). 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, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdicts of guilt were 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 was not deprived of the effective assistance of counsel. Viewing the representation in its totality, we conclude that trial counsel rendered effective assistance under the applicable legal standards ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584). In this regard, the defendant has not shown “the absence of strategic or other legitimate explanations” for the conduct challenged on the appeals ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;see People v. Barboni, 21 N.Y.3d 393, 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820;People v. McNeal, 111 A.D.3d 652, 652–653, 974 N.Y.S.2d 276). MASTRO, J.P., AUSTIN, SGROI and MILLER, JJ., concur.