Opinion
2017–05082 Ind. No. 287/16
03-27-2019
The PEOPLE, etc., Respondent, v. Kenneth RANSOM, Appellant.
N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Barbara Kornblau of counsel; Joseph Ferencik on the brief), for respondent.
N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Barbara Kornblau of counsel; Joseph Ferencik on the brief), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDERORDERED that the judgment is affirmed. Viewing the evidence in the light most favorable to the prosecution (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 beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). 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 at 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 was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the County Court should have granted his motion for a mistrial based upon the admission of certain testimony of a police officer responsible for performing field sobriety tests is only partially preserved for appellate review (see CPL 470.05[2] ). In any event, the court providently exercised its discretion in denying the motion (see People v. Licausi, 122 A.D.3d 771, 773, 996 N.Y.S.2d 188 ; People v. Reaves, 112 A.D.3d 746, 747–748, 976 N.Y.S.2d 228 ; People v. Brown, 76 A.D.3d 532, 533, 904 N.Y.S.2d 911 ; People v. Arena, 70 A.D.3d 1044, 1046–1047, 895 N.Y.S.2d 514 ).
The defendant's contention that the County Court failed to meaningfully respond to a jury note requesting clarification is unpreserved for appellate review (see People v. Clark, 28 N.Y.3d 556, 566, 46 N.Y.S.3d 817, 69 N.E.3d 604 ; People v. Elder, 152 A.D.3d 787, 798–790, 59 N.Y.S.3d 134 ) and, in any event, is without merit (see People v. Robinson, 163 A.D.3d 1002, 1002, 81 N.Y.S.3d 512 ; People v. Mattison, 162 A.D.3d 905, 907, 79 N.Y.S.3d 274 ; People v. Mancusi, 161 A.D.3d 775, 776, 76 N.Y.S.3d 574 ; People v. Elder, 152 A.D.3d at 798–790, 59 N.Y.S.3d 134; People v. Williams, 150 A.D.3d 902, 904, 55 N.Y.S.3d 102 ).
The defendant's contention that the verdict is repugnant is not preserved for appellate review (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Lamb, 164 A.D.3d 1470, 1472, 83 N.Y.S.3d 219 ) and, in any event, is without merit (see People v. Lamb, 164 A.D.3d at 1472, 83 N.Y.S.3d 219 ; People v. Richards, 164 A.D.3d 1378, 1379, 81 N.Y.S.3d 748 ; People v. Barnette, 150 A.D.3d 1136, 1137, 56 N.Y.S.3d 322 ).
We find no merit to the defendant's contention that the hearing court should have suppressed a statement he made to the arresting officer at the police station house approximately two hours after his arrest, which was identical in content to a suppressed statement the defendant made at the scene. The station house statement was made after the defendant had invoked his right to remain silent, during routine processing by the arresting officer of the defendant's pedigree information. That the officer may have disclosed the charges being brought against the defendant, possibly in response to a question from the defendant, under these circumstances, did not transform the pedigree questioning into custodial interrogation (see People v. Smith, 117 A.D.2d 690, 498 N.Y.S.2d 431 ) or render the statement involuntary (see People v. Hamilton, 156 A.D.2d 467, 468, 548 N.Y.S.2d 754 ; People v. Plock, 146 A.D.2d 652, 536 N.Y.S.2d 550 ). Moreover, despite the defendant's contentions to the contrary, there was no evidence adduced at the hearing, at which the defendant did not testify, "to support his claim that his [second statement] was made on constraint of the prior inadmissible statement[ ] under the ‘cat out of the bag’ theory" ( People v. Rifkin, 289 A.D.2d 262, 263, 733 N.Y.S.2d 710 ; see People v. Morgan, 277 A.D.2d 331, 331, 715 N.Y.S.2d 754 ; People v. James, 253 A.D.2d 438, 440, 676 N.Y.S.2d 628 ; People v. Schultz, 187 A.D.2d 466, 467, 590 N.Y.S.2d 729 ).
The defendant contends that he was deprived of a fair trial by prosecutorial misconduct. The prosecutor improperly referenced the first, suppressed statement during her opening statement, improperly elicited testimony from the arresting officer regarding the suppressed statement, and improperly referred to the suppressed statement on summation. However, the defendant did not raise any objections to any of these references to the suppressed statement. Consequently, the defendant's contention on appeal regarding the prosecutor's references to the suppressed statement is unpreserved for appellate review (see People v. Perez–Olivo, 127 A.D.3d 1110, 1111, 6 N.Y.S.3d 299 ; People v. Bonds, 118 A.D.3d 717, 719, 987 N.Y.S.2d 428 ). In any event, the prosecutor's conduct did not deprive the defendant of a fair trial (see People v. Warden, 166 A.D.3d 817, 819, 87 N.Y.S.3d 307 ; People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589 ), and any other error was harmless, as the evidence of the defendant's guilt, without reference to the suppressed statement, was overwhelming, and there was no reasonable possibility that the jury would have acquitted him but for the prosecutor's conduct (see People v. Ellis, 166 A.D.3d 993, 995, 88 N.Y.S.3d 537 ; People v. Gaskin, 78 A.D.2d 877, 877, 433 N.Y.S.2d 26 ).
The defendant's remaining contention is without merit.
SCHEINKMAN, P.J., BALKIN, HINDS–RADIX and CHRISTOPHER, JJ., concur.