People v. Rivera

• Decision Date: 08 June 2010
• Citation: 904 N.Y.S.2d 449,74 A.D.3d 993
• Parties: The PEOPLE, etc., respondent, v. Brian RIVERA, appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 449 74 A.D.3d 993 The PEOPLE, etc., respondent, v. Brian RIVERA, appellant. Supreme Court, Appellate Division, Second Department, New York. June 8, 2010.

Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.

FRED T. SANTUCCI, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 11, 2007, convicting him of murder in the second degree (felony murder), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of murder in the second degree (felony murder) and criminal possession of a weapon in the second degree is unpreserved for appellate review, as the defendant merely made a general motion for a trial order of dismissal based upon the People's alleged failure to establish a prima facie case both after the People rested and after the close of the evidence. The defendant did not assert any specific grounds in his motions, including whether there was insufficient evidence to corroborate the accomplice testimony in accordance with CPL 60.22(1) ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Jackson, 70 A.D.3d 858, 893 N.Y.S.2d 634, lv. denied 14 N.Y.3d 841, 901 N.Y.S.2d 148, 927 N.E.2d 569; People v. Demolaire, 55 A.D.3d 621, 622, 865 N.Y.S.2d 625; People v. Forino, 39 A.D.3d 664, 665, 833 N.Y.S.2d 603).

In any event, 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, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfiedthat 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). The evidence "tend[ed] to connect the defendant to the crime[s] charged" ( People v. Montefusco, 44 A.D.3d 879, 880, 843 N.Y.S.2d 671; see CPL 60.22[1]; People v. Besser, 96 N.Y.2d 136, 143-144, 726 N.Y.S.2d 48, 749 N.E.2d 727; People v. Breland, 83 N.Y.2d 286, 292-293, 609 N.Y.S.2d 571, 631 N.E.2d 577; People v. Steinberg, 79 N.Y.2d 673, 683, 584 N.Y.S.2d 770, 595 N.E.2d 845; People v. Delgado, 50 A.D.3d 915, 917, 855 N.Y.S.2d 253). The corroborative evidence, consisting of, among other things, records of cell phone calls made to and by the defendant during the course of the incident ( see People v. Garcia, 232 A.D.2d 578, 648 N.Y.S.2d 959; People v. Barbieri, 207 A.D.2d 554, 555, 616 N.Y.S.2d 80), and the defendant's statements to the police ( see People v. Booker, 53 A.D.3d 697, 702, 862 N.Y.S.2d 139; People v. Harris, 19 A.D.3d 871, 873, 797 N.Y.S.2d 614; People v. Dorsey, 3 A.D.3d 590, 592, 770 N.Y.S.2d 462; People v. Weeks, 176 A.D.2d 836, 836-837, 575 N.Y.S.2d 162), were independent of, and did not draw its weight and probativevalue from, the accomplice testimony ( see People v. Steinberg, 79 N.Y.2d at 683, 584 N.Y.S.2d 770, 595 N.E.2d 845; People v. Delgado, 50 A.D.3d at 917, 855 N.Y.S.2d 253).

The defendant's contention that certain autopsy photographs of the victim were improperly admitted into evidence by the trial court is unpreserved for appellate review ( see CPL 470.05[2]; People v. Dickerson [ Leroy ], 42 A.D.3d 228, 236-237, 837 N.Y.S.2d 101). In any event, the photographs were properly admitted into evidence, as the "sole purpose" of their admission was not "to arouse the emotions of the jury and to prejudice the defendant" ( People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110; see People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178; People v. Sampson, 67 A.D.3d 1031, 1032, 890 N.Y.S.2d 557; People v. Allan, 41 A.D.3d 727, 839 N.Y.S.2d 771; People v. Clark, 37 A.D.3d 487, 488, 829 N.Y.S.2d 201; People v. Diaz, 35 A.D.3d 226, 227, 825 N.Y.S.2d 51). Instead, the photographs were properly admitted to illustrate and corroborate the testimony of the medical examiner who performed the autopsy ( see People v. Rhodes, 49 A.D.3d 668, 669-670, 853 N.Y.S.2d 375; People v. Allan, 41 A.D.3d at 727-728, 839 N.Y.S.2d 771; People v. Clark, 37 A.D.3d at 488, 829 N.Y.S.2d 201).

The statements made by one of the defendant's accomplices during a telephone call to his girlfriend, while he was driving to the location where the...