PEOPLE v. ARMENTO (2019)

Judgment, Supreme Court, Bronx County (Steven Barrett, J., at hearing;  Martin Marcus, J., at trial and sentencing), rendered November 13, 2008, convicting defendant, after a jury trial, of murder in the first degree, and sentencing him to a term of life without parole, unanimously affirmed.

Defendant's codefendant was previously convicted of attempted burglary in the first degree and sentenced to a term of 10 years in connection with the crime (People v. Brancato, 101 A.D.3d 459, 958 N.Y.S.2d 7 [1st Dept. 2012], lv denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013] ).  Defendant was convicted of the point-blank shooting death of an off-duty police officer who was responding to the nighttime burglary of his neighbor's residence.  The evidence was legally sufficient (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), and the verdict was not against the weight of the evidence (People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).

The People gave defendant adequate notice pursuant to CPL 710.30 of his statement that would be introduced at trial, including aspects of his statement on two pages in a police officer's notepad that by inadvertence were not physically attached to the formal notice.  The part of the statement in the notepad was made to the same police officer in the same location and at the same time as, and was part of the same communication and was consistent with, the formally noticed statement (see People v. Morris, 248 A.D.2d 169, 670 N.Y.S.2d 828 [1st Dept. 1998], affd 93 N.Y.2d 908, 690 N.Y.S.2d 510, 712 N.E.2d 676 [1999] ), and was even less inculpatory than the formally noticed statement.

Giving due deference to the hearing court's findings on credibility (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ) and on the basis of the hearing evidence, we conclude that defendant's inculpatory statements, as to which he waived his Miranda rights, were made voluntarily, notwithstanding a minor unintended delay in defendant's arraignment at the hospital where he was being treated.

Defendant's challenge to the justification charge was not preserved (CPL 470.05[2] ), and we decline to exercise our discretion to review it in the interest of justice (see People v. Williams, 145 A.D.3d 100, 40 N.Y.S.3d 94 [1st Dept. 2016];  People v. Marshall, 106 A.D.3d 1, 11, 961 N.Y.S.2d 447 [1st Dept. 2013], lv denied 21 N.Y.3d 1006, 971 N.Y.S.2d 258, 993 N.E.2d 1280 [2013] ), especially in view of the potential adverse consequences to the administration of justice caused by defendant's lengthy delay in appealing (see e.g. People v. Taveras, 10 N.Y.3d 227, 855 N.Y.S.2d 417, 885 N.E.2d 181 [2008] ).

We find no basis for concluding that the sentence imposed was excessive.