PEOPLE v. CAMACHO (2010)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree (Penal Law § 125.25 [3] ), defendant contends that the verdict is inconsistent insofar as the jury convicted him of murder in the second degree under subdivision (3) of Penal Law § 125.25 but acquitted him of the counts of intentional murder in the second degree (§ 125.25[1] ) and conspiracy in the second degree (§ 105.15).   Defendant failed to raise that contention prior to the discharge of the jury and thus failed to preserve it for our review (see People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to the further contention of defendant, the conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 We reject the contention of defendant that his written and oral statements to the police were involuntary and that County Court therefore erred in refusing to suppress them.  “The voluntariness of a confession is to be determined by examining the totality of the circumstances surrounding the confession” (People v. Coggins, 234 A.D.2d 469, 470, 651 N.Y.S.2d 572;  see People v. Scott, 212 A.D.2d 1047, 623 N.Y.S.2d 44, affd. 86 N.Y.2d 864, 635 N.Y.S.2d 167, 658 N.E.2d 1040).   Here, defendant's statement was not rendered involuntary by reason of any alleged deception by the police.   In general, mere deception by the police will not require suppression of a statement obtained therefrom unless “the deception was so fundamentally unfair as to deny due process” (People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188), or if the police made a “ ‘promise or threat ․ that could induce a false confession’ ” (People v. Tankleff, 84 N.Y.2d 992, 994, 622 N.Y.S.2d 503, 646 N.E.2d 805).  “Even assuming, arguendo, that the police misled defendant, we conclude that such deception did not create a substantial risk that the defendant might falsely incriminate himself” (People v. Alexander, 51 A.D.3d 1380, 1382, 857 N.Y.S.2d 418, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [internal quotation marks omitted];  see People v. Sanchez, 286 A.D.2d 650, 730 N.Y.S.2d 706, lv. denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367;  People v. Jackson, 143 A.D.2d 471, 473, 532 N.Y.S.2d 808).

We also reject defendant's contention that the court abused its discretion by admitting in evidence certain photographs of the murder victim (see generally People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   Here, the photographs were relevant to show an intent to kill, to corroborate the Medical Examiner's testimony concerning the cause of death, and to corroborate the statements that defendant made to several witnesses concerning the commission of the crime (see People v. Jones, 43 A.D.3d 1296, 1297-1298, 843 N.Y.S.2d 880, lv. denied 9 N.Y.3d 991, 848 N.Y.S.2d 608, 878 N.E.2d 1024, 10 N.Y.3d 812, 857 N.Y.S.2d 46, 886 N.E.2d 811;  People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: