Opinion
No. 23 SSM 33
01-11-2022
The PEOPLE of the State of New York, Respondent, v. Guillermo ORTIZ, Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York City (Gabe Newland and Joseph M. Nursey of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz and Dana Poole of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York City (Gabe Newland and Joseph M. Nursey of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz and Dana Poole of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant contends that the police engaged in improper pre-Miranda custodial interrogation and, as a result, his post-Miranda statements and the gun and ammunition should have been suppressed. However, defendant's contention that the subsequent statements and physical evidence were fruit of the unwarned statement is unpreserved for our review (see People v. Panton, 27 N.Y.3d 1144, 1145, 37 N.Y.S.3d 58, 57 N.E.3d 1095 [2016] ).
While defendant's initial unwarned statement, made in response to custodial interrogation, should have been suppressed, that error was harmless beyond a reasonable doubt. Given the overwhelming evidence against defendant, including the videotaped statement made more than 24 hours after the unwarned statement, there was no reasonable possibility that his unwarned statement contributed to the verdict (see People v. Romero, 27 N.Y.3d 981, 982, 32 N.Y.S.3d 43, 51 N.E.3d 554 [2016] ; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; see also People v. Ortiz, 189 A.D.3d 587, 587, 137 N.Y.S.3d 357 [1st Dept. 2020] ). Furthermore, defendant failed to demonstrate that he was denied the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ; People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ) and the trial court did not abuse its discretion by denying defendant's CPL 440.10 motion without a hearing (see People v. Gross, 26 N.Y.3d 689, 696–697, 27 N.Y.S.3d 459, 47 N.E.3d 738 [2016] ). Defendant's remaining contention that his pre-Miranda statement violated the New York State Constitution is unpreserved.
Chief Judge DiFiore and Judges Rivera, Garcia, Wilson, Singas, and Cannataro concur.
On review of submissions pursuant to Rules of the Court of Appeals ( 22 NYCRR) § 500.11, order affirmed, in a memorandum.