Opinion
Argued September 21, 2000.
November 6, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered April 10, 1997, convicting him of murder in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress a written statement he gave to law enforcement authorities.
Leighton M. Jackson, Brooklyn, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Thomas S. Berkman of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the defendant's conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment as so modified, the judgment is affirmed.
The hearing court correctly denied the defendant's motion to suppress his written statement to law enforcement authorities. The totality of the circumstances indicates that the defendant's statement was made voluntarily (see, People v. Tarsia, 50 N.Y.2d 1, 11; People v. Huntley, 15 N.Y.2d 72, 78; People v. Bebeck, 258 A.D.2d 660; People v. Sohn, 148 A.D.2d 553, 556).
The defendant was convicted of assault in the second degree and murder in the second degree based on two separate incidents involving two victims. We agree with the defendant that the evidence was not legally sufficient to establish his guilt of the charge of assault in the second degree. Although the assailant in the assault incident used a machete owned by the defendant during the commission of the crime, the record does not support the jury's finding that the defendant, who was in his car during the attack, possessed the intent to cause physical injury to the victim (see, People v. Padgett, 145 A.D.2d 443; People v. Bray, 99 A.D.2d 470; cf., People v. Moore, 172 A.D.2d 855).
The sentence imposed on the defendant's conviction for murder in the second degree was not excessive (see, CPL 470.15; People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.