From Casetext: Smarter Legal Research

People v. Garcia

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 2002
290 A.D.2d 299 (N.Y. App. Div. 2002)

Summary

In People v. Garcia, 290 AD2d 299, 300 (1st Dept. 2002), lv. denied, 98 NY2d 730 (2002), although CPL § 710.30 notice was only provided as to five out of six statements, it was held that Defendant's motion to preclude the statement for which no notice was given was waived because he "was granted a suppression hearing at which defendant received a full opportunity to be heard on the voluntariness of all of his written and oral statements."

Summary of this case from People v. Williams

Opinion

5865-5866

January 15, 2002.

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered January 6, 1998, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth degree (two counts), criminal possession of stolen property in the fifth degree and criminal trespass in the second degree, and sentencing him, as a second felony offender, to two concurrent terms of 2 to 4 years, consecutive to two concurrent terms of 1 year, unanimously affirmed.

DONNA KRONE, for respondent.

WILLIAM A. LOEB, for defendant-appellant.

Before: Nardelli, J.P., Mazzarelli, Saxe, Sullivan, Ellerin, JJ.


Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered May 6, 1998, convicting defendant, after a jury trial, of three counts of burglary in the third degree, and sentencing him, as a second felony offender, to two concurrent terms of 3½ to 7 years, consecutive to a term of 3 to 6 years, unanimously affirmed.

The verdict convicting defendant of credit-card related crimes was based on legally sufficient evidence and was not against the weight of the evidence. The evidence clearly established that defendant possessed stolen credit cards. The cards were admitted in evidence and, by examining them and the terms stated thereon, the jury could readily determine the issuer and holder of the cards, as well as the nature of the cards (People v. Johnson, 214 A.D.2d 478, lv denied 86 N.Y.2d 733;People v. Davis-Ivery, 158 A.D.2d 959, lv denied 75 N.Y.2d 965). The circumstantial evidence rendered unnecessary the testimony of the holder or the issuer of the cards.

Defendant's claim that a missing witness charge should have been given with respect to the holder of the credit card is unavailing since his testimony would have been cumulative (see, People v. Gonzalez, 68 N.Y.2d 424). The holder's identity and ownership of the cards was established by circumstantial evidence at trial. In any event, were we to find any error, we would find it to be harmless since defendant was given ample latitude on summation to comment on the complainant's absence, and there was overwhelming evidence of defendant's guilt.

With respect to defendant's burglary convictions, the People provided notice, pursuant to CPL 710.30, of four written statements made by defendant to the police, and an additional oral statement made to the prosecutor, but did not mention an oral statement made to the police. Defendant's motion to preclude the oral statement he made to the police on the ground of lack of CPL 710.30 notice was properly denied. Such ground had been waived since defendant was granted a suppression hearing at which defendant received a full opportunity to be heard on the voluntariness of all of his written and oral statements (see, CPL 710.30; People v. Merrill, 87 N.Y.2d 948; People v. Morris, 248 A.D.2d 169, 170, affd 93 N.Y.2d 908). Moreover, defendant received sufficient notice of the oral statement at issue since it was made in the same interview as the written statements and was consistent with them (People v. Morris, supra; People v. Martinez, 203 A.D.2d 212). In any event, were we to find any error, we would find it to be harmless (see, People v. Ventura, 250 A.D.2d 403, lv denied 92 N.Y.2d 931), particularly since defendant was acquitted of the charge involving that statement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

People v. Garcia

Appellate Division of the Supreme Court of New York, First Department
Jan 15, 2002
290 A.D.2d 299 (N.Y. App. Div. 2002)

In People v. Garcia, 290 AD2d 299, 300 (1st Dept. 2002), lv. denied, 98 NY2d 730 (2002), although CPL § 710.30 notice was only provided as to five out of six statements, it was held that Defendant's motion to preclude the statement for which no notice was given was waived because he "was granted a suppression hearing at which defendant received a full opportunity to be heard on the voluntariness of all of his written and oral statements."

Summary of this case from People v. Williams
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT v. DAVID GARCIA…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 15, 2002

Citations

290 A.D.2d 299 (N.Y. App. Div. 2002)
735 N.Y.S.2d 545

Citing Cases

People v. Corsaro

Generally, when a defendant moves to suppress or preclude all statements, the lack of notice for any…

People v. Williams

Based on the holding in Kirkland, ( supra), the First Department has repeatedly held that, in cases similar…