People v. Seeley

• Decision Date: 23 September 1996
• Citation: 648 N.Y.S.2d 111,231 A.D.2d 653
• Parties: The PEOPLE, etc., Respondent, v. Eron SEELEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 111

648 N.Y.S.2d 111

231 A.D.2d 653

The PEOPLE, etc., Respondent, v. Eron SEELEY, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 23, 1996.

Adam Seiden, Mount Vernon, for appellant, and appellant, pro se.

Jeanine Pirro, District Attorney, White Plains (Mary E. Costello and Maryanne Luciano, of counsel), for respondent.

Before MILLER, J.P., and PIZZUTO, JOY and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from two judgments of the County Court, Westchester County (Pirro, J.), both rendered April 26, 1993, convicting him of (1) murder in the second degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, and assault in the third degree under Indictment No. 92-00560, upon a jury verdict, and (2) criminal possession of a controlled substance in the fifth degree under Indictment No. 92-01079, upon his plea of guilty, and imposing sentences. The appeals bring up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement officials.

ORDERED that the judgments are affirmed.

The defendant contends that his inculpatory statements should have been suppressed because his right against self-incrimination was violated. The defendant's contention is unavailing since he made his inculpatory comments, which were not prompted, coerced, or coaxed from him after he was twice advised of his Miranda rights and after he waived his rights (see, People v Santiago, 72 N.Y.2d 836, 530 N.Y.S.2d 546, 526 N.E.2d 36). Indeed, the defendant, an admitted second violent felony offender, informed the police that he had heard the rights before and understood them.

For his crime of shooting into a group of people resulting in the death of one victim, the defendant was charged, inter alia, with two counts of murder in the second degree, one count charging intent and the other charging depraved indifference (Penal Law § 125.25[1], [2]. After a Ventimiglia hearing (see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59), the court allowed the People to elicit testimony from one of their witnesses that the defendant had threatened him with a gun one week prior to the instant shooting. The defendant contends that the admission of his alleged uncharged crime was error. We disagree. The Ventimiglia ruling was proper since the testimony of the uncharged crime was probative in establishing the defendant's intent and motive in shooting into a group that included the witness he had threatened only a week ago (see, People v. Young, 172 A.D.2d 790, 569 N.Y.S.2d 162, mod. on other grounds 79 N.Y.2d 365, 582 N.Y.S.2d 977, 591 N.E.2d 1163; People v. Liberatore, 167 A.D.2d 425, 561 N.Y.S.2d 832).

The defendant's pro se contention that the detectives' testimony concerning the pretrial photographic identification of him deprived him of a fair trial is unpreserved for appellate review (see, People v. Barroso, 228 A.D.2d 196, 643 N.Y.S.2d 101; People v. Collins, 214 A.D.2d 483, 625 N.Y.S.2d 222). In any event, the defendant opened the door by inquiring of two witnesses about their photographic identification at the precinct and in attempting to impugn their identification (see, People v. Rosado, 172 A.D.2d...