Opinion
2011-11-9
The PEOPLE, etc., respondent,v.Casey MACK, appellant.
James Kousouros, New York, N.Y., for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), for respondent.
James Kousouros, New York, N.Y., for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered May 21, 2009, convicting him of burglary in the second degree and possession of burglar's tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and oral statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and oral statements he made to law enforcement officials. The initial encounter between the defendant and the police was lawful from its inception inasmuch as the arresting officer had an objective, credible reason to approach the defendant to request information ( see People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204; People v. Davis, 78 A.D.3d 724, 725, 910 N.Y.S.2d 142; People v. Hill, 72 A.D.3d 702, 898 N.Y.S.2d 553; People v. Ferrell, 266 A.D.2d 560, 699 N.Y.S.2d 120). Moreover, contrary to the defendant's contention, under the circumstances, the Supreme Court properly determined that the officer's act of following the defendant in an attempt to conclude his inquires was unobtrusive and did not serve to limit the defendant's freedom of movement ( see People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484; People v. Amuso, 44 A.D.3d 781, 783, 843 N.Y.S.2d 395; People v. Grunwald, 29 A.D.3d 33, 38, 810 N.Y.S.2d 437; People v. Cruz, 292 A.D.2d 175, 175, 738 N.Y.S.2d 201; People v. Lopez, 169 A.D.2d 782, 783, 565 N.Y.S.2d 150; cf. People v. Dickerson, 153 A.D.2d 897, 899, 545 N.Y.S.2d 391). Accordingly, the Supreme Court properly concluded that the defendant's abandonment of a duffle bag while being followed by the police officer was not precipitated by illegal police conduct and that branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied ( see People v. Davis, 78 A.D.3d at 725, 910 N.Y.S.2d 142; People v. Foster, 302 A.D.2d 403, 404, 756 N.Y.S.2d 239; People v. Hughes, 174 A.D.2d 692, 571 N.Y.S.2d 548). Furthermore, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress oral statements since the defendant was not in police custody at the time he made those statements ( see People v. Taylor, 82 A.D.3d 1133, 1133–1134, 920 N.Y.S.2d 154; see also People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89).
The defendant's contention that a severance was warranted is unpreserved for appellate review ( see People v. Sabatino, 41 A.D.3d 871, 871, 840 N.Y.S.2d 802; People v. Johnson, 224 A.D.2d 635, 638, 639 N.Y.S.2d 409). In any event, the defendant's contention is without merit, as the defenses asserted by the defendant and the codefendant were not in irreconcilable conflict with each other such that there was a danger that the conflict alone would have led the jury to infer the defendant's guilt ( see
People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34; People v. Terry, 78 A.D.3d 1207, 1207, 912 N.Y.S.2d 122).
The defendant further contends that he was denied his right to confrontation by the Supreme Court's admission of certain out-of-court statements made by the codefendant ( see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476). This contention is without merit since the challenged statements did not directly implicate the defendant ( see Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176; People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657; People v. Melendez, 285 A.D.2d 819, 821, 727 N.Y.S.2d 773; People v. Johnson, 224 A.D.2d 635, 639 N.Y.S.2d 409).
The defendant also contends that the Supreme Court committed reversible error by admitting a police radio transmission and the tape of the complainant's 911 call since such evidence constituted inadmissible hearsay which improperly bolstered witness testimony as prior consistent statements. The defendant's contention that the Supreme Court erred by admitting the police radio transmission is unpreserved for appellate review ( see People v. Walker, 70 A.D.3d 870, 894 N.Y.S.2d 156). In any event, both the police radio transmission and the tape of the complainant's 911 call were properly admitted. An out-of-court statement made by a witness which is consistent with that witness's trial testimony is generally inadmissible as hearsay, but it may be admitted to rebut a claim of recent fabrication—an exception to the hearsay rule ( see People v. Buie, 86 N.Y.2d 501, 510–511, 634 N.Y.S.2d 415, 658 N.E.2d 192; see also People v. Baker, 23 N.Y.2d 307, 323, 296 N.Y.S.2d 745, 244 N.E.2d 232; People v. Concepcion, 175 A.D.2d 324, 326, 572 N.Y.S.2d 940 n). However, if the out-of-court statement qualifies under a separate exception to the rule against hearsay, it may be admitted notwithstanding the fact that “it might also be a prior consistent statement” ( People v. Buie, 86 N.Y.2d at 511, 634 N.Y.S.2d 415, 658 N.E.2d 192). Here, the police radio transmission was properly admitted to establish circumstances relevant to the defendant's arrest ( see People v. Severino, 44 A.D.3d 1077, 844 N.Y.S.2d 391; People v. Isaac, 222 A.D.2d 523, 635 N.Y.S.2d 544; People v. Thompson, 202 A.D.2d 454, 608 N.Y.S.2d 674), and the complainant's 911 call was properly admitted under the excited utterance exception to the hearsay rule ( see People v. Coward, 292 A.D.2d 630, 739 N.Y.S.2d 612; People v. Carr, 277 A.D.2d 246, 247, 716 N.Y.S.2d 59). Accordingly, the Supreme Court properly admitted the police radio transmission and the tape of the complainant's 911 call ( see People v. Buie, 86 N.Y.2d at 511, 634 N.Y.S.2d 415, 658 N.E.2d 192).