PEOPLE v. COAD (2009)

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered May 17, 2007, convicting him of burglary in the first degree, sexual abuse in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing in the County Court, Nassau County (Kase, J.), of those branches of the defendant's omnibus motion which were to suppress identification testimony and statements made to law enforcement officials.

ORDERED that the judgment is affirmed.

 The Supreme Court properly admitted into evidence at trial a tape recording of the 911 emergency call made by the complainant's then 12-year-old daughter under the excited utterance (see People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229;  People v. Carrenard, 56 A.D.3d 486, 487, 867 N.Y.S.2d 470;  People v. Dominick, 53 A.D.3d 505, 505-506, 862 N.Y.S.2d 520;  People v. Davis, 49 A.D.3d 895, 896, 853 N.Y.S.2d 896;  People v. Marino, 21 A.D.3d 430, 431, 800 N.Y.S.2d 439, cert. denied 548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958) and present sense impression (see People v. Brown, 80 N.Y.2d 729, 734-737, 594 N.Y.S.2d 696, 610 N.E.2d 369;   People v. Marino, 21 A.D.3d at 431, 800 N.Y.S.2d 439;  People v. York, 304 A.D.2d 681, 757 N.Y.S.2d 495;  People v. Smith, 267 A.D.2d 407, 408, 700 N.Y.S.2d 227) exceptions to the hearsay rule.   Moreover, even if the probative value of the tape was outweighed by its prejudicial effect, under the circumstances of this case, admission of the 911 tape was harmless given that it merely substantiated that an unidentified intruder was in the house (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Buie, 86 N.Y.2d 501, 518, 634 N.Y.S.2d 415, 658 N.E.2d 192).

 The County Court properly denied that branch of the defendant's omnibus motion which was to suppress the in-court identification testimony of the complainant.   Contrary to the defendant's contention, the in-court identification was not tainted by a prior showup in front of the complainant's home, immediately after the crime.   The defendant failed to meet his ultimate burden of establishing that the showup was unduly suggestive (see People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228;  People v. Dupree, 37 A.D.3d 491, 491-492, 829 N.Y.S.2d 199;  People v. Carbonaro, 162 A.D.2d 459, 556 N.Y.S.2d 158).   Therefore, it was not necessary for the People to show that an independent source existed for the complainant's in-court identification (see People v. Hayes, 191 A.D.2d 644, 595 N.Y.S.2d 239;  People v. Johnson, 170 A.D.2d 535, 566 N.Y.S.2d 538;  People v. Jackson, 108 A.D.2d 757, 757-758, 484 N.Y.S.2d 913).

 Contrary to the defendant's contention, his statements to law enforcement officials were not rendered involuntary because he allegedly was under the influence of mild-altering drugs (see People v. Arevalo, 54 A.D.3d 380, 862 N.Y.S.2d 586, lv. denied 11 N.Y.3d 829, 868 N.Y.S.2d 604, 897 N.E.2d 1088;  People v. Benjamin, 17 A.D.3d 688, 689, 793 N.Y.S.2d 547).   Thus, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress his confession.

The defendant's contention that the trial court's Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was coercive is unpreserved for appellate review since defense counsel did not object to the instructions given by the court (see CPL 470.05[2];  People v. McKenzie, 48 A.D.3d 594, 594-595, 852 N.Y.S.2d 217;  People v. Auguste, 294 A.D.2d 371, 371-372, 741 N.Y.S.2d 700;  People v. Petty, 282 A.D.2d 551, 552, 722 N.Y.S.2d 898).   In any event, the court's Allen charge was not coercive (see People v. Applewhite, 50 A.D.3d 1046, 1047, 856 N.Y.S.2d 230;  People v. McKenzie, 48 A.D.3d at 595, 852 N.Y.S.2d 217;  People v. Kinard, 215 A.D.2d 591, 626 N.Y.S.2d 858;  People v. Perdomo, 204 A.D.2d 358, 611 N.Y.S.2d 560) and, on the whole, the charge was balanced and neutral in tone and directed at the jurors in general (see People v. Pagan, 45 N.Y.2d 725, 727, 408 N.Y.S.2d 473, 380 N.E.2d 299;  People v. Gonzales, 281 A.D.2d 432, 721 N.Y.S.2d 772;  People v. Arnold, 226 A.D.2d 468, 469, 641 N.Y.S.2d 318).

 In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).