Opinion
2015–04675 Ind.No. 1184/13
01-24-2018
The PEOPLE, etc., respondent, v. Gamaliel NIEVES, appellant.
Neal D. Futerfas, White Plains, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Kevin C. King of counsel), for respondent.
Neal D. Futerfas, White Plains, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and Kevin C. King of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Nassau County (William O'Brien, J.), rendered May 18, 2015, convicting him of attempted robbery 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 pursuant to a stipulation in lieu of motions (George R. Peck, J.), of the suppression of the defendant's statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied suppression of statements he made to law enforcement officials prior to having received Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ) concerning the location of a gun. Under the circumstances of this case, the officer's question to the defendant was permissible under the public safety exception to the requirement of Miranda warnings (see New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 ; People v. Golden, 147 A.D.3d 780, 47 N.Y.S.3d 67 ).
Contrary to the defendant's contention, the Supreme Court did not err in admitting evidence of certain prior bad acts committed by the defendant. The evidence was relevant to establish the defendant's motive for the charged assault, to provide " ‘necessary background information,’ " and to place " ‘the charged conduct in context’ " ( People v. Gamble, 18 N.Y.3d 386, 398, 941 N.Y.S.2d 1, 964 N.E.2d 372, quoting People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; see People v. Jean, 127 A.D.3d 882, 882, 4 N.Y.S.3d 905 ; People v. Wisdom, 120 A.D.3d 724, 725–726, 991 N.Y.S.2d 141 ). Moreover, the court gave a sufficient limiting instruction regarding the use the jury could make of the evidence, which the jury is presumed to have followed (see People v. Curran, 139 A.D.3d 1085, 1087, 33 N.Y.S.3d 334 ; People v. Maitland, 136 A.D.3d 1058, 1059, 26 N.Y.S.3d 190 ).
The defendant argues that the evidence supporting his conviction of attempted robbery in the second degree was not legally sufficient and that the verdict of guilt on that count was against the weight of the evidence. Viewing the evidence in the light most favorable to the prosecution (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 the defendant's guilt of attempted robbery in the second degree beyond a reasonable doubt. 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 the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 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 of attempted robbery in the second degree 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 sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.