People v. Festus

• Decision Date: 25 November 2015
• Parties: The PEOPLE, etc., respondent, v. Donnell FESTUS, appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 876

21 N.Y.S.3d 278

The PEOPLE, etc., respondent,

v.Donnell FESTUS, appellant.

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

Nov. 25, 2015.

Salvatore C. Adamo, New York, N.Y., for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs, J.), rendered September 1, 2010, convicting him of murder in the first degree, murder in the second degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant's contention that his due process rights were violated by the failure to videotape his interrogation by the police is unpreserved for appellate review (see CPL 470.05[2] ) and in any event, without merit (see People v. Marsden, 130 A.D.3d 945, 947, 16 N.Y.S.3d 563 ; People v. Thomas, 90 A.D.3d 1080, 1081, 935 N.Y.S.2d 329 ; People v. Rodriguez, 68 A.D.3d 789, 789, 888 N.Y.S.2d 894 ; People v. Nelson, 52 A.D.3d 534, 535, 860 N.Y.S.2d 546 ).

The credibility determinations of the hearing court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v. Whyte, 47 A.D.3d 852, 852–853, 850 N.Y.S.2d 184 ). Here, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to the police based on the testimony of the detective who conducted the interrogation that the defendant waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), never invoked his right to counsel, and made his statements voluntarily. There is no basis in the record to disturb the hearing court's determination crediting testimony.

The People's notice of intention to introduce a photo array on which the defendant wrote that he identified someone in the array as an accomplice was sufficient under CPL 710.30(1)(a) to give notice of the People's intention to use, at trial, the defendant's statement written on the array (see People v. Springer, 221 A.D.2d 386, 386, 633 N.Y.S.2d 508 ).

The Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 374–375, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) struck an appropriate balance between the probative value of certain evidence of the defendant's prior convictions and the risk of prejudice to the defendant. Furthermore, the defendant was not denied a fair trial by the People's summation (see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885 ).

The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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 (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 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 ). 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 ).

The sentence...