Opinion
2013-12-5
The PEOPLE of the State of New York, Respondent, v. Austin MOSES, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Bonnie C. Brennan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, GISCHE, JJ.
Judgment, Supreme Court, New York County (Herbert Adlerberg, J.H.O. and Gregory Carro, J. at suppression proceedings; Bruce Allen, J. at jury trial and sentencing), rendered August 13, 2009, convicting defendant of two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of five years, unanimously affirmed.
The court properly denied defendant's motion to suppress two written statements. There is no basis for disturbing the court's credibility determinations. The People elicited sufficient evidence to satisfy their burden of establishing the voluntariness of these statements, notwithstanding some lack of recollection on the part of police witnesses ( see generally People v. Witherspoon, 66 N.Y.2d 973, 498 N.Y.S.2d 789, 489 N.E.2d 758 [1985] ). Between the two written statements, defendant made an oral statement that the court suppressed. Defendant asserts that the second written statement was the product of the suppressed statement. However, the court suppressed the statement solely on the ground of the officer's inability to recall the details and circumstances of that statement, and it made no express finding that the statement was unlawfully obtained. It is thus unclear whether the court was suppressing the oral statement as involuntary, or on other grounds not necessarily within the proper scope of a suppression hearing, which is not concerned with the trial issue of whether a statement was actually made ( see People v. Garcia, 197 A.D.2d 380, 602 N.Y.S.2d 360 [1st Dept.1993], lv. denied82 N.Y.2d 849, 606 N.Y.S.2d 601, 627 N.E.2d 523 [1993] ). In any event, regardless of the reason for suppression of the oral statement, there is nothing to indicate that defendant gave the second written statement as a result of the oral statement ( see People v. Tanner, 30 N.Y.2d 102, 105–106, 331 N.Y.S.2d 1, 282 N.E.2d 98 [1972]; People v. Rifkin, 289 A.D.2d 262, 263, 733 N.Y.S.2d 710 [2d Dept.2001], lv. denied97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366 [2002] ). Finally, defendant did not preserve his claim that the police used coercive tactics to obtain either or both of his written statements, and we decline to review it in the interest of justice. As an alternative holding, we find that it is not supported by the record.
By failing to make timely and specific objections, defendant failed to preserve his challenges to the prosecutor's summation ( see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), and we decline to review them in the interestof justice. As an alternative holding, we find no basis for reversal ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept.1997], lv. denied91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
The court's instruction on temporary and innocent possession, which tracked the language of the Criminal Jury Instructions, correctly stated the law.