People v. Delgado

• Docket Number: 2017–09122,Ind. No. 2730/15
• Decision Date: 22 November 2023
• Citation: 221 A.D.3d 909,200 N.Y.S.3d 414
• Parties: The PEOPLE, etc., respondent, v. Ricardo DELGADO, appellant.
• Court: New York Supreme Court — Appellate Division

221 A.D.3d 909

200 N.Y.S.3d 414

The PEOPLE, etc., respondent,

v.Ricardo DELGADO, appellant.

2017–09122

Ind. No. 2730/15

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

Argued—October 10, 2023

November 22, 2023

Patricia Pazner, New York, NY (Hannah Kon and White & Case LLP[Joshua J. Howard, Maya Priestley, Mariel Radek, Emily Dufner, and David H. Suggs ], of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O'Boyle of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, LOURDES M. VENTURA, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County(Gregory Lasak, J.), rendered July 20, 2017, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), 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 evidence and certain statements he made to law enforcement officials.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence."While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged, there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance"( People v. Salcedo,209 A.D.3d 678, 679, 175 N.Y.S.3d 329[internal quotation marks omitted];seePeople v. Baez,172 A.D.3d 893, 893, 100 N.Y.S.3d 93 ).Here, the defendant failed to establish that the lineup identification procedure was unduly suggestive.A review of the lineup photograph reveals that the lineup fillers possessed physical characteristics that were reasonably similar to those of the defendant, and that the police took reasonable steps to conceal any differences between the appearances of the lineup participants and the defendant(seePeople v. Salcedo,209 A.D.3d at 679, 175 N.Y.S.3d 329;People v. Costan,197 A.D.3d 716, 721–722, 152 N.Y.S.3d 162;People v. Benshitrit,185 A.D.3d 1046, 1047–1048, 126 N.Y.S.3d 194 ).Further, the photograph taken of the lineup reflects that the age and weight disparities between the defendant and the fillers were not so apparent as to "orient the viewer toward the defendant as a perpetrator of the crimes charged"( People v. Salcedo,209 A.D.3d at 679, 175 N.Y.S.3d 329[internal quotation marks omitted];seePeople v. Dorcil,194 A.D.3d 1069, 1070, 144 N.Y.S.3d 394 ).

The defendant contends that the Supreme Court improperly denied that branch of his omnibus motion which was to suppress certain statements he made to a detective while in a police vehicle because the testimony of the detective at the suppression hearing was incredible as a matter of law and patently tailored to overcome constitutional objections.This contention is unpreserved for appellate review, as the defendant failed to raise that specific claim before the court(seeCPL 470.05[2];People v. Kelly,131 A.D.3d 484, 484, 15 N.Y.S.3d 391;People v. Inge,90 A.D.3d 675, 676, 933 N.Y.S.2d 879;People v. Rivera,27 A.D.3d 489, 490, 812 N.Y.S.2d 575 ).In any event, the contention is without merit.The credibility determinations of a hearing court are accorded great weight on appeal, as that is the court that has the ability to see, hear, and observe the witnesses before it (seePeople v. Francis,215 A.D.3d 762, 763, 185 N.Y.S.3d 695;People v. Harris,192 A.D.3d 151, 162, 138 N.Y.S.3d 593 ).However, "[a]n appellate court will disturb a credibility determination if the witness's testimony is impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, as to be disregarded for being without evidentiary value, even if it is not contradicted by other testimony or evidence"( People v. Francis,215 A.D.3d at 763, 185 N.Y.S.3d 695;seePeople v. Biggs,208 A.D.3d 1340, 1343, 175 N.Y.S.3d 117 )."A credibility determination may also be set aside on appeal if the witness's testimony is patently tailored to nullify constitutional objections"( People v. Francis,215 A.D.3d at 763, 185 N.Y.S.3d 695;seePeople v. Biggs,208 A.D.3d at 1343, 175 N.Y.S.3d 117 ).Here, upon consideration of all the relevant facts and circumstances, the testimony of the detective at the suppression hearing was not incredible or patently tailored to meet constitutional objections, and, in exercising our factual review power, we find that the court properly credited his testimony (seePeople v. Francis,215 A.D.3d at 763, 185 N.Y.S.3d 695 ).

The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (seeCPL 470.05[2];People v. Hawkins,11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ).In any event, viewing the evidence in the light most favorable to the prosecution(seePeople 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 beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15[5];People v. Danielson,9 N.Y.3d 342, 348, 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 (seePeople 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 (seePeople v. Romero,7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).Further, we decline to reverse the defendant's convictions in the interest of justice (seeCPL 470.15[3][c] ).

The defendant contends that the Supreme Court deprived him of his constitutional rights to confront witnesses and to present a defense by limiting his cross-examination of a prosecution witness with regard to two hearsay statements in certain police reports, which the defendant contends were admissible for the nonhearsay purpose of challenging the adequacy of the police investigation.This contention is unpreserved for appellate review, as the defendant did not assert a constitutional right to introduce the excluded evidence at trial (seeCPL 470.05[2];People v. Ramsundar,138 A.D.3d 892, 892–893, 30 N.Y.S.3d 172;People v. Simmons,106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618 ), and, in any event, without merit.Although a defendant has the constitutional rights to present a defense and to confront adverse witnesses through cross-examination (seeU.S. Const 6th Amend;NY Const, art I, § 6 ), these rights do not guarantee unfettered cross-examination (seePeople v. Agosto,203 A.D.3d 841, 842, 160 N.Y.S.3d 908 ) and do not give criminal defendants"carte blanche to circumvent the rules of evidence"( People v. Hayes,17 N.Y.3d 46, 53, 926 N.Y.S.2d 382, 950 N.E.2d 118[internal quotation marks omitted])."Challenging the adequacy of a police investigation may...