People v. Oliver

• Decision Date: 13 September 2011
• Parties: The PEOPLE, etc., respondent,v.Kevin OLIVER, appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1035

929 N.Y.S.2d 182

2011 N.Y. Slip Op. 06496

The PEOPLE, etc., respondent,

v.Kevin OLIVER, appellant.

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

Sept. 13, 2011.

Kevin Oliver, Napanoch, N.Y., appellant pro se.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio, Sarah S. Rabinowitz, and Matthew C. Frankel of counsel), for respondent.JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and L. PRISCILLA HALL, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Peck, J.), rendered January 30, 2007, convicting him of robbery in the first degree, burglary in the second degree, and menacing 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 the evidence was legally insufficient to support his conviction is without merit. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 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, upon our independent review pursuant to CPL 470.15(5), 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).

After subtracting the periods of delay which were due to the defendant's pretrial motion practice ( see CPL 30.30[4][a]; People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228; People v. Mazarakis, 54 A.D.3d 876, 877, 863 N.Y.S.2d 380) and adjournments requested by the defendant ( see CPL 30.30[4][b] ), the total time chargeable to the People was less than six months ( see CPL 30.30[1][a]; see generally People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287).

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. “The credibility determinations of the Supreme Court, which saw and heard the witnesses at the suppression hearing, are entitled to great weight on appeal, and will not be disturbed unless they are unsupported by the record” ( People v. Timmons, 54 A.D.3d 883, 885, 864 N.Y.S.2d 111; see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). The evidence presented at the suppression hearing supports the Supreme Court's determination that the defendant's spontaneous statements, made after a police officer arrested him but before Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) were administered, were not triggered by any police questioning or other conduct which reasonably could have been expected to elicit a statement from him ( see People v. Whyte, 47 A.D.3d 852, 853, 850 N.Y.S.2d 184; People v. Baliukonis, 35 A.D.3d 626, 627, 829 N.Y.S.2d 112).

The defendant's contention that the evidence presented to the grand jury was legally insufficient is not reviewable on this appeal, since the defendant's guilt was proven beyond a reasonable doubt at trial ( see CPL 210.30[6]; People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194, lv. denied 17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094; People v. Parker, 74 A.D.3d 1365, 1366, 903 N.Y.S.2d 264; People v. Capehart, 61 A.D.3d 885, 886, 877 N.Y.S.2d 211; People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365).

The defendant's contentions concerning the validity of the arrest warrant are unpreserved for appellate review and, in any event, are without merit ( see CPL 120.10). The defendant's remaining contentions are without merit or involve matter dehors the record.

We disagree with our dissenting colleague's conclusion that the Supreme Court was obligated to, sua sponte, declare a mistrial based upon the fact that the complainant identified someone other than the defendant—but who had the same name as the defendant—as the perpetrator from a photo array shown to him by the police. As a threshold matter, the defendant, who proceeded pro se at trial, rejected his legal advisor's recommendation that he move for a mistrial based upon the “confusion” with the photo array. Furthermore, since the defendant does not argue on appeal that the Supreme Court should have, sua sponte, declared a mistrial notwithstanding his refusal to request such relief at trial, this issue is not before us on this appeal.

Although the issue is not before us, we note that contrary to the conclusion reached by the dissent, reversal would not be warranted. At trial, the People presented evidence that the defendant's fingerprint was found on the finger of a white latex glove recovered at the gas station where the subject robbery occurred and the defendant's statement to the police placing himself at the crime scene. Also, the version of events testified to by the defendant, in which he placed himself at the gas station around the time of the incident and admitted to having an altercation with the complainant and attempting to remove a surveillance videotape from the premises, was highly suspect. The complainant's photo array misidentification and the defect in the photo array were disclosed to the jury through witness testimony, and the photo array itself was admitted into evidence during the defendant's cross-examination of the complainant. Finally, in addition to rejecting his legal advisor's recommendation that he move for a mistrial, the defendant declined the Supreme Court's offer to strike the complainant's in-court identification testimony and indicated that he intended to use the complainant's misidentification to undermine the People's case. Under these circumstances, consideration of whether the trial court should have, sua sponte, declared a mistrial on the basis of issues related to the photo array would be unwarranted on this appeal ( see People v. Moore, 66 A.D.3d 707, 710, 886 N.Y.S.2d 468, affd. 15 N.Y.3d 811, 908 N.Y.S.2d 146, 934 N.E.2d 879).

COVELLO, J.P., ANGIOLILLO and DICKERSON, JJ., concur.HALL, J., dissents and votes to reverse the judgment appealed from and order a new trial, with the following memorandum:

While I agree with certain determinations made by the majority, I must respectfully dissent in light of certain errors at trial, which, in my view, require reversal in this case.

The defendant was arrested in connection with a September 2005 robbery that occurred at a Hess gas station in Elmont. At trial, the assistant manager of the gas station (hereinafter the complaining witness) testified that at 4:15 A.M. on the morning of the robbery, he was cleaning up a spill in the vestibule of the gas station, when he heard a noise coming from the manager's office and observed that the door was slightly open. The complaining witness tried to open the door, but was not able to do so. He then saw the defendant coming from behind the door. The defendant opened the door and tried to grab the complaining witness's hand. However, the defendant did not succeed. According to the complaining witness, the vestibule was “pretty lit” and he could see most of the defendant's front. The complaining witness tried to escape, but he tripped and fell. While the complaining witness was on the floor, he saw “something like a knife” with a four-inch blade in the defendant's hand. After the complaining witness managed to get out of the building, he observed the defendant shaking the cash register.

The complaining witness was driven to a nearby gas station, where he called the 911 emergency telephone number. While the complaining witness was making the call, he observed the defendant run past the car. The defendant was holding a money bag. When the police arrived about two minutes later, the complaining witness returned to the Hess gas station. At about 4:50 A.M., police officers took the complaining witness to a man named Victor Covington to see if the complaining witness would identify him as the robber. The complaining witness stated that Covington was not the man who robbed the gas station earlier.

On October 19, 2005, the complaining witness was shown a photo array and selected photo number three as the photo of the person who committed the robbery. The complaining witness identified the defendant as the assailant at trial.

The defendant proceeded pro se at trial, with a court-appointed legal advisor. During the defendant's cross-examination of the complaining witness, he showed the complaining witness a photo array, and asked the complaining witness if he identified any of the individuals in the photo array. The complaining witness replied that he picked out number three, “the person [he] had described to be the robber.” However, the defendant stated that photo number three was not a picture of him.

On the next day of the trial, the prosecutor informed the Supreme Court that, although the complaining witness, upon viewing the photo array, had identified the person depicted in photo number three, photo number three was not a photograph of the defendant. The prosecutor explained that the individual depicted in photo number three had the same name as the defendant—Kevin Oliver. The prosecutor conceded that the complaining witness picked out the wrong individual.

Subsequently, a Nassau County Police Department detective testified at trial that on October 19, 2005, he showed a series of six photographs to the complaining witness, and the complaining witness picked out photo number three as depicting his assailant. The...