People v. Nimmons

• Decision Date: 30 May 2012
• Citation: 2012 N.Y. Slip Op. 04195,95 A.D.3d 1360,945 N.Y.S.2d 358
• Parties: The PEOPLE, etc., respondent, v. Alex NIMMONS, appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1360
945 N.Y.S.2d 358
2012 N.Y. Slip Op. 04195

The PEOPLE, etc., respondent,
v.
Alex NIMMONS, appellant.

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

May 30, 2012.

Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Suzanne H. Sullivan of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.

[95 A.D.3d 1360]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered September 17, 2009, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial (Lasak,

[945 N.Y.S.2d 359]

J.), after a hearing (O'Dwyer, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress his oral and written statements to law enforcement officials.

ORDERED that the judgment is modified, on the law, by reducing the conviction of assault in the second degree to assault in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on that count.

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress his oral and written statements to law enforcement officials. A review of the totality of the circumstances ( see People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318) demonstrates that the defendant's oral and written statements to the police, which were given after he was informed of, and waived, his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), were voluntarily made ( seeCPL 60.45[1]; People v. Mateo, 2 N.Y.3d at 414, 779 N.Y.S.2d 399, 811 N.E.2d 1053;People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179;People v. Seabrooks, 82 A.D.3d 1130, 1130–1131, 918 N.Y.S.2d 797).

However, viewed 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), the evidence was legally insufficient to support the defendant's conviction of assault in the second...