PEOPLE v. CARVALHO (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the third degree (Penal Law § 160.05) and grand larceny in the third degree (§ 155.35).   Contrary to the contention of defendant, County Court properly refused to suppress tape-recorded statements that he made to his ex-wife.   Although the People may not elicit incriminating statements from a defendant who is represented by counsel, “statements induced by nongovernmental entities, acting privately, do not fall within the ambit of this exclusionary rule” (People v. Velasquez, 68 N.Y.2d 533, 537, 510 N.Y.S.2d 833, 503 N.E.2d 481).   Here, according to the evidence at the suppression hearing, defendant's ex-wife was not acting as an agent of the police, and her statements were not otherwise induced by governmental entities (see id.;  People v. Jean, 13 A.D.3d 466, 467, 786 N.Y.S.2d 564, lv. denied 5 N.Y.3d 764, 801 N.Y.S.2d 258, 834 N.E.2d 1268, 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159;  People v. Shabani, 203 A.D.2d 142, 611 N.Y.S.2d 2, lv. denied 84 N.Y.2d 832, 617 N.Y.S.2d 152, 641 N.E.2d 173).

 We further conclude that the court properly allowed a prosecution witness to testify with respect to her identification of defendant from a photo array.  “Defendant opened the door to the testimony of that witness” by attacking the validity of the photo array during his opening statement (People v. Williams, 273 A.D.2d 824, 826, 710 N.Y.S.2d 214, lv. denied 95 N.Y.2d 893, 715 N.Y.S.2d 386, 738 N.E.2d 790).   Furthermore, defendant was not denied effective assistance of counsel based on defense counsel's strategic attempt to discredit the pretrial identification of the witness by using the photo array (see People v. Ofield, 280 A.D.2d 978, 720 N.Y.S.2d 678, lv. denied 96 N.Y.2d 832, 729 N.Y.S.2d 453, 754 N.E.2d 213).

 Contrary to the further contention of defendant, he has “no constitutional right to a jury trial to establish the facts of his prior felony convictions” (People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844;  see People v. Rivera, 5 N.Y.3d 61, 67, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473). Furthermore, we conclude that the court did not abuse its discretion in sentencing defendant as a persistent felony offender based upon defendant's criminal history (see People v. O'Connor, 6 A.D.3d 738, 740-741, 775 N.Y.S.2d 98, lv. denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200, 3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: