Opinion
2012-06755
12-31-2014
The PEOPLE, etc., respondent, v. Anthony ROMERO, also known as Robert Rosa, appellant.
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner and Alexis Ascher of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Danielle S. Fenn of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner and Alexis Ascher of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Danielle S. Fenn of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered June 18, 2012, convicting him of robbery in the first degree and criminal possession of a weapon in the third 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 identification testimony and a statement he made to a law enforcement official.
ORDERED that the judgment is affirmed.
The hearing court properly denied suppression of the complainant's confirmatory identification of the defendant (see People v. Ali, 32 A.D.3d 522, 522, 819 N.Y.S.2d 668 ; People v. Benjamin, 2 A.D.3d 740, 741, 768 N.Y.S.2d 659 ; People v. Coleman, 214 A.D.2d 619, 620, 625 N.Y.S.2d 91 ). The defendant correctly contends that his statement made to a detective without the benefit of Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), and after he had been arrested and subjected to express questioning, should have been suppressed (see People v. Rivera, 91 A.D.3d 972, 972, 937 N.Y.S.2d 621 ; People v. Robinson, 38 A.D.3d 572, 573, 832 N.Y.S.2d 585 ; People v. Guerrier, 291 A.D.2d 506, 507, 738 N.Y.S.2d 230 ). Nevertheless, the admission of that statement was harmless beyond a reasonable doubt, as the evidence of the defendant's guilt, without reference to his pretrial statement, was overwhelming, and there was no reasonable possibility that the error in admitting the statement might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Rivera, 91 A.D.3d at 973, 937 N.Y.S.2d 621 ; People v. Tavares–Nunez, 87 A.D.3d 1171, 1175, 930 N.Y.S.2d 589 ; People v. Johnson, 277 A.D.2d 702, 706, 717 N.Y.S.2d 668 ).
Contrary to the defendant's contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's identity as the perpetrator. 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, 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 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 ; People v. Green, 107 A.D.3d 915, 915–916, 967 N.Y.S.2d 753 ; People v. Reid, 82 A.D.3d 1268, 1268–1269, 919 N.Y.S.2d 862 ).
The defendant's contention that the trial court's instructions to the jury on the issue of reasonable doubt were constitutionally inadequate is unpreserved for appellate review (see CPL 470.05[2] ; People v. Washington, 117 A.D.3d 1091, 1092, 986 N.Y.S.2d 230 ; People v. Coles, 62 A.D.3d 1022, 1023, 878 N.Y.S.2d 913 ). In any event, the contention is without merit, because the instructions, on the whole, conveyed the correct standard to be employed by the jury (see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134 ; People v. Morris, 120 A.D.3d 835, 837, 991 N.Y.S.2d 454, lv. granted 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 [Nov. 25, 2014] ; People v. Washington, 117 A.D.3d at 1092, 986 N.Y.S.2d 230 ; People v. Coles, 62 A.D.3d at 1023, 878 N.Y.S.2d 913 ). However, the Supreme Court is cautioned to rely on the most recent version of New York's Criminal Jury Instructions rather than recite from older versions (see People v. Morris, 120 A.D.3d at 837, 991 N.Y.S.2d 454 ).
The defendant's remaining contention is without merit.