Opinion
05-24-2017
The PEOPLE, etc., respondent, v. Joseph PEREZ, appellant.
Robert C. Mitchell, Riverhead, NY (Felice B. Milani of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of counsel), for respondent.
Robert C. Mitchell, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Camacho, J.), rendered June 25, 2015, convicting him of aggravated vehicular homicide, manslaughter in the second degree, and vehicular manslaughter in the second degree, 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 his statement to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly denied suppression of the statement he made to the police after he was advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ; People v. Glover, 87 N.Y.2d 838, 839, 637 N.Y.S.2d 683, 661 N.E.2d 155 ; People v. Carrino, 134 A.D.3d 946, 948, 22 N.Y.S.3d 116 ; People v. Powell, 304 A.D.2d 410, 410–411, 757 N.Y.S.2d 297 ). After he was advised of his rights, the defendant was asked if he was willing to answer questions. He said "yes," but wrote "no" on his written waiver. This was not an unequivocal invocation of his right to counsel, and it was proper for the detective to clarify the defendant's answer (see Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 ; People v. Powell, 304 A.D.2d at 410–411, 757 N.Y.S.2d 297 ; cf. People v. Harris, 93 A.D.3d 58, 68, 936 N.Y.S.2d 233, affd. 20 N.Y.3d 912, 956 N.Y.S.2d 478, 980 N.E.2d 527 ), to ensure that the defendant had not invoked his right to counsel, and did not wish to (see People v. Powell, 304 A.D.2d at 410–411, 757 N.Y.S.2d 297 ).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the People (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 of aggravated vehicular homicide (Penal Law § 125.14[1] ) and manslaughter in the second degree (Penal Law § 125.15[1] ) beyond a reasonable doubt (see People v. Hale, 147 A.D.3d 975, 48 N.Y.S.3d 159 ; People v. Gallo, 133 A.D.3d 1088, 1089–1090, 20 N.Y.S.3d 685 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Viewing the record as a whole, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; cf. People v. Gordian, 99 A.D.3d 538, 538, 952 N.Y.S.2d 46 ). "[A] showing that counsel failed to make a particular pretrial motion generally does not, by itself, establish ineffective assistance of counsel" (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Vonneida, 130 A.D.3d 1322, 1322–1323, 13 N.Y.S.3d 708 ; People v. Coats, 195 A.D.2d 519, 519, 601 N.Y.S.2d 830 ). Even if there was a colorable basis upon which a motion to suppress evidence of the defendant's refusal to submit to a chemical test could have been made, the defendant was not deprived of the effective assistance of counsel since the motion had little or no chance of success (see People v. Carver, 27 N.Y.3d 418, 420–421, 33 N.Y.S.3d 857, 53 N.E.3d 734 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
DILLON, J.P., AUSTIN, HINDS–RADIX and MALTESE, JJ., concur.