People v. Rivera

Decision Date21 December 1987
Citation135 A.D.2d 755,522 N.Y.S.2d 659
PartiesThe PEOPLE, etc., Respondent, v. Fernando RIVERA, Appellant.
CourtNew York Supreme Court — Appellate Division

Philip L. Weinstein, New York City (Frederick W. Turner, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Brian D. Foley and Andrew J. Frisch, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, BRACKEN and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered December 3, 1985, convicting him of murder 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 statements.

ORDERED that the judgment is affirmed.

The defendant contends that the People did not prove the voluntariness of his oral and videotaped statements. The hearing court found that, under the totality of the circumstances, the defendant knowingly and voluntarily waived his Miranda rights, as he was twice advised of his rights, stated he understood them, and then began freely answering questions (see, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286; People v. Harris, 79 A.D.2d 615, 433 N.Y.S.2d 480; People v. Baez, 79 A.D.2d 608, 433 N.Y.S.2d 489). We find that the hearing court's determination was supported by the evidence (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Armstead, 98 A.D.2d 726, 469 N.Y.S.2d 137).

The defendant's claim concerning the court's charge on reasonable doubt has not been preserved for appellate review. In any event, the court's charge on reasonable doubt was complete and accurate. It was not error for the court to instruct the jury that if they had a doubt upon which a reasonable person would hesitate to act, that was reasonable doubt (see, United States v. Ivic, 700 F.2d 51, 69 n. 11; People v. Quinones, 123 A.D.2d 793, 507 N.Y.S.2d 417, lv. denied 69 N.Y.2d 749, 512 N.Y.S.2d 1053, 505 N.E.2d 251). Overall, the effect of this statement, when considered with the rest of the charge on reasonable doubt, was to properly inform the jury that a reasonable doubt was not a doubt based on " 'a whim, sympathy or some other vague reason' " but rather a doubt which was reasonably based on the evidence or lack of evidence (see, People v. Malloy, 55 N.Y.2d 296,...

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9 cases
  • People v. Nazario
    • United States
    • New York Supreme Court
    • June 21, 1990
    ...merely approved the phrase as a way of differentiating between a reasonable doubt and a doubt based on whim. People v. Rivera, 135 A.D.2d 755, 522 N.Y.S.2d 659 (2d Dept.1987), lv. den., 71 N.Y.2d 901, 527 N.Y.S.2d 1011, 523 N.E.2d 318 (1988); People v. Quinones, 123 A.D.2d 793, 507 N.Y.S.2d......
  • People v. Nunez
    • United States
    • New York Supreme Court — Appellate Division
    • February 13, 1992
    ...634; People v. Warden, 170 A.D.2d 469, 565 N.Y.S.2d 828, lv. denied 77 N.Y.2d 968, 570 N.Y.S.2d 502, 573 N.E.2d 590; People v. Rivera, 135 A.D.2d 755, 522 N.Y.S.2d 659, lv. denied 71 N.Y.2d 901, 527 N.Y.S.2d 1011, 523 N.E.2d 318; People v. Gomez, 127 A.D.2d 606, 511 N.Y.S.2d 406, lv. denied......
  • People v. Probst
    • United States
    • New York Supreme Court — Appellate Division
    • January 18, 1990
    ...finding that defendant waived his constitutional rights and voluntarily confessed to having committed the robbery (see, People v. Rivera, 135 A.D.2d 755, 522 N.Y.S.2d 659, lv. denied 71 N.Y.2d 901, 527 N.Y.S.2d 1011, 523 N.E.2d 318; People v. Latshaw, 123 A.D.2d 479, 506 N.Y.S.2d 489; Peopl......
  • People v. Graziano
    • United States
    • New York Supreme Court — Appellate Division
    • June 26, 1989
    ...review as a matter of law (see, CPL 470.05[2]; People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Rivera, 135 A.D.2d 755, 522 N.Y.S.2d 659). In any event, the claim of error is without merit. The trial court's reference to a "search for the truth" did not hopelessl......
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