People v. Jones
| Decision Date | 19 July 2013 |
| Citation | 2013 N.Y. Slip Op. 05399,108 A.D.3d 1206,969 N.Y.S.2d 364 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Damitria S. JONES, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
108 A.D.3d 1206
969 N.Y.S.2d 364
2013 N.Y. Slip Op. 05399
The PEOPLE of the State of New York, Respondent,
v.
Damitria S. JONES, Defendant–Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
July 19, 2013.
[969 N.Y.S.2d 365]
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.
MEMORANDUM:
[108 A.D.3d 1206]On appeal from a judgment convicting her after a nonjury trial of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court erred in denying the motion to suppress her written statement as the fruit of unlawful pre- Miranda questioning. Contrary to defendant's contention, the court properly refused to suppress statements that she made to the police inasmuch as “defendant was not in custody when [s]he made those statements and thus ... the fact that [s]he had not been [administered Miranda warnings] when [s]he made the statements does not require their suppression” ( People v. Semrau, 77 A.D.3d 1436, 1437, 908 N.Y.S.2d 487,lv. denied16 N.Y.3d 746, 917 N.Y.S.2d 627, 942 N.E.2d 1052).
Contrary to defendant's further contention, the identification procedure was not unduly suggestive. “[T]he subjects depicted in the photo array are sufficiently similar in appearance so that the viewer's attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection”
( People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671,lv. [108 A.D.3d 1207]denied3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207), and the photographs used in the array did not “create a substantial likelihood that the defendant would be singled out for identification” ( People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;see People v. Egan, 6 A.D.3d 1203, 1204, 776 N.Y.S.2d 667,lv. denied3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200).
Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Additionally, “ ‘[h]aving...
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