People v. Heesh

• Decision Date: 05 April 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Russell L. HEESH, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02529
94 A.D.3d 1159
941 N.Y.S.2d 767

The PEOPLE of the State of New York, Respondent,
v.
Russell L. HEESH, Appellant.

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

April 5, 2012.

[941 N.Y.S.2d 768]

Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, STEIN and GARRY, JJ.

GARRY, J.

[94 A.D.3d 1160] Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered June 14, 2010, upon a verdict convicting defendant of the crime of reckless endangerment in the first degree (two counts).

In March 2009, defendant's girlfriend moved from his home, where she had resided for approximately four months, to return to the home she owned with another man, with whom she had previously been romantically involved (hereinafter the paramour). On the night after her move, multiple gunshots were fired through a window of their home into a bedroom where the girlfriend and the paramour were sleeping. Defendant was subsequently charged with two counts of reckless endangerment in the first degree and

[941 N.Y.S.2d 769]

five counts of criminal possession of a weapon in the fourth degree.

Following a jury trial in January 2010, defendant was convicted upon the five criminal possession charges, but the jury was unable to reach a verdict as to the two reckless endangerment charges. County Court sentenced defendant to concurrent one-year prison terms upon the convictions, and declared a mistrial as to the remaining charges. In May 2010, a second jury convicted defendant upon the reckless endangerment counts. He was sentenced in June 2010 to two prison terms of 2 to 6 years, to run concurrently to each other and consecutively to the prior sentence. Defendant appeals.

Initially, defendant's challenges relative to the January 2010 criminal possession convictions may not be addressed. The notice of appeal was directed solely to the May 2010 convictions and subsequent sentences; defendant neither appealed from the earlier judgment nor moved for an extension of time to take such an appeal ( see CPL 460.10[1][a]; 460.30[1]; People v. Dabo, 82 A.D.3d 485, 917 N.Y.S.2d 631 [2011], lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199 [2011]; People v. Moore, 194 A.D.2d 32, 34, 604 N.Y.S.2d 976 [1993], lv. denied 83 N.Y.2d 856, 612 N.Y.S.2d 387, 634 N.E.2d 988 [1994] ).

As to the May 2010 convictions, defendant contends that his statements to police were coerced and should have been suppressed. Whether a statement is voluntary is a factual question to be determined from the totality of the circumstances ( see People v. Pouliot, 64 A.D.3d 1043, 1044, 883 N.Y.S.2d 372 [2009], lv. denied 13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009]; People v. Button, 56 A.D.3d 1043, 1044, 867 N.Y.S.2d 768 [2008], lv. dismissed 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009]; People v. Bridges, 16 A.D.3d 911, 912, 791 N.Y.S.2d 228 [2005], lv. denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974 [2005] ). At the Huntley hearing, a police investigator testified that she gave Miranda warnings to defendant immediately after he was taken into custody, [94 A.D.3d 1161] and defendant confirmed that he understood the warnings and consented to speak with police. She testified that, during subsequent questioning, defendant never asked to speak with an attorney nor invoked his right to remain silent, he was offered food and drink, and he was permitted to spend time with family members and, upon his request, to speak with a senior investigator. Defendant initially denied any involvement in the shooting but eventually made several incriminating admissions. Both investigators who spoke with defendant testified that, although they could smell alcohol on his person, he did not appear to be intoxicated and was able to respond to questions without difficulty. Defendant acknowledged that he was given Miranda warnings, but alleged that he could not hear them because another officer was speaking at the same time. He testified that he never waived his Miranda rights, that he requested counsel at least twice, that an officer “kind of yell[ed] at [him]” during the interview, and that he was “[v]ery intimidated.” Notably, despite his claim that he could not hear the investigator's warnings, defendant acknowledged that he was aware of his Miranda rights from numerous previous arrests ( compare People v. McLean, 59 A.D.3d 861, 863, 875 N.Y.S.2d 283 [2009], affd. 15 N.Y.3d 117, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010] ). Resolution of the conflicting testimony required credibility determinations by County Court, to which this Court defers; upon review we find no reason to disturb the determination ( see

[941 N.Y.S.2d 770]

People v. Byron, 85 A.D.3d 1323, 1324, 925 N.Y.S.2d 244 [2011], lv. denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [2011]; People v. Kuklinski, 24...