People v. Gega

• Decision Date: 22 June 2010
• Citation: 74 A.D.3d 1229,904 N.Y.S.2d 716
• Parties: The PEOPLE, etc., respondent, v. Edmir GEGA, appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 716

74 A.D.3d 1229

The PEOPLE, etc., respondent,

v.Edmir GEGA, appellant.

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

June 22, 2010.

Christine Moccia, Chappaqua, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and L. PRISCILLA HALL, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Zambelli, J.), rendered May 16, 2006, convicting him of burglary in the first degree, robbery in the second degree (three counts), grand larceny in the second degree, unauthorized use of a vehicle in the first degree, conspiracy in the fourth degree, criminal possession of stolen property in the third degree, and conspiracy in the fifth degree, upon a jury verdict, and sentencing him, inter alia, to a determinate term of imprisonment of 25 years on the convictionof burglary in the first degree under count 23 of the indictment, to run concurrently with determinate terms of imprisonment of 15 years imposed on each of the convictions of robbery in the second degree under counts 25 and 26 of the indictment, a determinate term of imprisonment of 5 years imposed on the conviction of grand larceny in the second degree under count 28 of the indictment, an indeterminate term of imprisonment of 2 1/2 to 7 years imposed on the conviction of unauthorized use of a vehicle in the first degree under count 30 of the indictment, an indeterminate term of imprisonment of 2 to 4 years imposed on the conviction of conspiracy in the fourth degree under count 33 of the indictment, an indeterminate term of imprisonment of 1 1/3 to 4 years imposed on the conviction of criminal possession of stolen property in the third degree under count 34 of the indictment, and a definite term of imprisonment of one year imposed on the conviction of conspiracy in the fifth degree under count 35 of the indictment, all to run consecutively to a determinate term of imprisonment of 15 years imposed on the conviction of robbery in the second degree under count 27 of the indictment. 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 modified, on the law, by providing that the term of imprisonment imposed upon the conviction of robbery in the second degree under count 27 of the indictment shall run concurrently with the terms of imprisonment imposed upon the convictions of robbery in the second degree under counts 25 and 26 of the indictment; as so modified, the judgment is affirmed.

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 toconduct 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 the 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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 ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his pretrial motion which was tosuppress statements he made to law enforcement officials after he was advised of his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). A court generally must look to the totality of the circumstances to determine the voluntariness of an inculpatory statement ( see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318). The factors to be examined in determining the totality of the circumstances surrounding a defendant's confession include the duration and conditions of detention, the attitude of the police toward the defendant, and the age, physical state, and mental state of the defendant ( see People v. Baker, 208 A.D.2d 758, 758-59, 617 N.Y.S.2d 798; People v. McAvoy, 142 A.D.2d 605, 530 N.Y.S.2d 259; People v. Ross, 134 A.D.2d 298, 299, 520 N.Y.S.2d 625). "Where, as here, a person in police custody was issued Miranda warnings and waived those rights voluntarily and intelligently, 'it is not necessary to repeat the warnings prior to subsequent questioning within a reasonable time thereafter, so long as the custody has remained continuous' " ( People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99, quoting People v. Glinsman, 107 A.D.2d 710, 710, 484 N.Y.S.2d 64, cert. denied 472 U.S. 1021, 105 S.Ct. 3487, 87 L.Ed.2d 621). The record supports the Supreme Court's determination that, under the circumstances here, the defendant's statements, made 25 hours after last receiving his Miranda warnings, were not involuntary ( see People v. Petronio, 34 A.D.3d at 604, 825 N.Y.S.2d 99; People v. Glinsman, 107 A.D.2d at 710, 484 N.Y.S.2d 64;cf. People v. Zappulla, 282 A.D.2d 696, 724 N.Y.S.2d 433).

The defendant was not deprived of his right to a fair trial by the prosecutor's comments during summation. Although the prosecutor's reference to the terrorist attacks of September 11, 2001, should have been avoided, it was not so inflammatory or prejudicial as to warrant reversal ( see People v. Esquivel, 46 A.D.3d 394, 848 N.Y.S.2d 621). The defendant's challenges to the remaining comments are unpreserved for appellate review because the defense made only a general objection, failed to request curative instructions, and did not timely move for a mistrial on these grounds ( see CPL 470.05[2]; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276; People v. Gill, 54 A.D.3d 965, 966, 864 N.Y.S.2d 135; People v. Norman, 40 A.D.3d 1130, 1131, 837 N.Y.S.2d 277). In any event, the comments alleged to be prejudicial were either fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105-109, 383 N.Y.S.2d 204, 347 N.E.2d 564), or harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's contention that the trial court erred in failing to give the requested jury charge is " 'unpreserved for appellatereview as the defense counsel waived any objection by acquiescing to the charge as given' " ( People v. Cox, 54 A.D.3d 684, 685, 863 N.Y.S.2d 697, quoting People v. James, 35 A.D.3d 762, 762, 825 N.Y.S.2d 776; see CPL 470.05[2] ). In any event, the charge as givensufficiently apprised the jury it was to render a verdict separately and specifically upon each count and with respect to each defendant ( see CPL 300.10[4]; People v. Liguori, 197 A.D.2d 538, 539, 602 N.Y.S.2d 187; People v. Scott, 158 A.D.2d 725, 552 N.Y.S.2d 172).

To the extent that ...