People v. Orraca

• Decision Date: 13 March 1997
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose ORRACA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 7

655 N.Y.S.2d 7

237 A.D.2d 148

The PEOPLE of the State of New York, Respondent, v. Jose ORRACA, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 13, 1997.

Susan Axelrod, for Respondent.

Elan Gerstmann, for Defendant-Appellant.

Before MURPHY, P.J., and WILLIAMS, TOM and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered November 17, 1993, convicting defendant, after a jury trial, of manslaughter in the first degree, reckless endangerment in the first degree, and assault in the second degree, and sentencing him, as a second violent felony offender, to consecutive terms of 12 1/2 to 25 years, 3 1/2 to 7 years, and 3 1/2 to 7 years, respectively, unanimously affirmed.

Defendant's guilt of each and every element of the crimes charged was proven beyond a reasonable doubt. Upon an independent review of the evidence, we find that defendant's guilt of the crimes charged was proven by overwhelming evidence.

Defendant's motion to suppress identification testimony was properly denied. Defendant's right to counsel at the investigatory lineup conducted shortly after his arrest was not violated because defendant's earlier indication that he did not wish to say anything further to the police "before speaking to a lawyer" did not constitute an explicit request for the presence of an attorney at the lineup (see, People v. Coates, 74 N.Y.2d 244, 249, 544 N.Y.S.2d 992, 543 N.E.2d 440; People v. Foy, 212 A.D.2d 446, 622 N.Y.S.2d 937, lv. denied 85 N.Y.2d 938, 627 N.Y.S.2d 1000, 651 N.E.2d 925). Defendant's right to counsel was substantially complied with at the second lineup (see, United States v. Tolliver, 569 F.2d 724). Any error in admission of lineup identifications made at the second lineup is harmless because the record supports the hearing court's finding of independent source, and the identifications in question added little to the overwhelming evidence against defendant (People v. Meadows, 64 N.Y.2d 956, 488 N.Y.S.2d 643, 477 N.E.2d 1097, cert. denied 474 U.S. 820, 106 S.Ct. 69, 88 L.Ed.2d 56).

Defendant's claims of error in evidentiary rulings do not require reversal. We note that the trial court properly precluded various hearsay evidence offered by defendant without argument in support of any viable exception to the hearsay exclusionary rule and properly permitted the prosecution to fully explore issues of police impropriety raised by defendant (see, People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946, 434 N.E.2d 1324).

Defendant's claims of error in connection with the prosecutor's...