People v. Burnett

• Decision Date: 22 June 2010
• Citation: 902 N.Y.S.2d 420,74 A.D.3d 1222
• Parties: The PEOPLE, etc., respondent, v. Derek BURNETT, appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 420
74 A.D.3d 1222

The PEOPLE, etc., respondent,
v.
Derek BURNETT, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 22, 2010.

Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Jenniger Hagan of counsel), for respondent.

74 A.D.3d 1222

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered July 21, 2008, convicting him of criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review

74 A.D.3d 1223

the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence. The defendant contends that the arresting officer's testimony was incredible. "The credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record" ( People v. Martinez, 58 A.D.3d 870, 870-871, 873 N.Y.S.2d 128; see People v. Blankumsce, 66 A.D.3d 692, 693, 885 N.Y.S.2d 633; People v. Cooks, 57 A.D.3d 796, 797, 870 N.Y.S.2d 80). Here, the officer's testimony at the suppression hearing was not incredible or otherwise unworthy of belief ( see People v. Blankumsce, 66 A.D.3d at 693, 885 N.Y.S.2d 633; People v. Cooks, 57 A.D.3d at 797, 870 N.Y.S.2d 80).

The defendant's contentions that the Supreme Court failed to properly charge the jury on the presumption of innocence and on the People's burden of proving his guilt beyond a reasonable doubt are unpreserved for appellate review ( see CPL 470.05[2]; People v. Hall, 56 A.D.3d 798, 799, 868 N.Y.S.2d 708; People v. Johnson, 35 A.D.3d 885, 885, 828 N.Y.S.2d 431). In any event, the jury charge as a whole correctly explained the concepts of the presumption of innocence and the People's burden of proving the defendant's guilt beyond a reasonable doubt to the jury and "adequately apprised the jury of the proper standard of proof to apply to the evidence before it" ( People v. Blackshear, 112 A.D.2d 1044, 1045-1046, 493 N.Y.S.2d 32). Consequently, the defendant was not deprived of a fair trial ( see People v. Grant, 294 A.D.2d 597, 597, 742 N.Y.S.2d 885).

The defendant was not...