PEOPLE v. LOUISIAS (2006)

Appeal by the defendant from a judgment of the County Court, Nassau County (DeRiggi, J.), rendered February 25, 1999, convicting him of murder in the first degree, robbery in the first degree (two counts), criminal possession of a weapon in the second 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, of that branch of the defendant's omnibus motion which was to suppress oral and written statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Contrary to the defendant's contention, this is not a case in which the People relied solely upon circumstantial evidence, as the defendant's admissions constituted direct evidence (see People v. Rumble, 45 N.Y.2d 879, 880-881, 410 N.Y.S.2d 806, 383 N.E.2d 108;  People v. Schoendorf, 196 A.D.2d 600, 601, 601 N.Y.S.2d 859;  People v. Lilly, 158 A.D.2d 622, 622, 551 N.Y.S.2d 592).   Therefore, the “moral certainty” standard by which purely circumstantial cases are tested is inapplicable here (see People v. Rumble, supra at 880-881, 410 N.Y.S.2d 806, 383 N.E.2d 108;  People v. Schoendorf, supra at 601, 601 N.Y.S.2d 859;  People v. Lilly, supra at 622, 551 N.Y.S.2d 592).

The defendant moved to suppress certain statements he made at police headquarters in response to questioning by detectives.  “The record at the suppression hearing established, however, that before making the statements the defendant had accompanied the detectives voluntarily to the precinct and had not been restrained in any way” (People v. Foy, 26 A.D.3d 344, 344, 812 N.Y.S.2d 553;  see People v. Melendez, 227 A.D.2d 646, 646-647, 643 N.Y.S.2d 607;  People v. Vogler, 201 A.D.2d 890, 890, 607 N.Y.S.2d 788).  “The defendant's contention that his statements should have been suppressed because he allegedly was placed in custody in the absence of probable cause is therefore without merit” (People v. Foy, supra;  see People v. Melendez, supra at 646-647, 643 N.Y.S.2d 607;  People v. Vogler, supra at 890, 607 N.Y.S.2d 788).

 The defendant did not raise at the suppression hearing his objection to the substance of the Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) the detectives read to him.   Therefore, this issue is unpreserved for appellate review (see CPL 470.05[2];  People v. Bartlett, 191 A.D.2d 574, 575, 595 N.Y.S.2d 89).   In any event, “[t]he ‘rigidity’ of the Miranda warnings does not extend ‘to the precise formulation of the warnings given a criminal defendant ․ no talismanic incantation [is] required to satisfy its strictures' ” (People v. Parker, 258 A.D.2d 479, 479, 682 N.Y.S.2d 922, quoting California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696;  see People v. Bartlett, supra at 575, 595 N.Y.S.2d 89).  “ ‘The inquiry is simply whether the warnings reasonably conve[y] to [a suspect] his rights as required by Miranda ’ ” (People v. Parker, supra at 479-480, 682 N.Y.S.2d 922, quoting Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166;  People v. Bartlett, supra at 575, 595 N.Y.S.2d 89).   The warnings given here reasonably apprised the defendant of his rights (see Duckworth v. Eagan, supra;   People v. Parker, supra at 479, 682 N.Y.S.2d 922;  People v. Bartlett, supra at 575, 595 N.Y.S.2d 89).

The County Court providently exercised its discretion in precluding alibi testimony, as the defendant failed to demonstrate good cause for his untimely alibi notice (see CPL 250.20[1];  People v. Tucker, 21 A.D.3d 387, 388, 798 N.Y.S.2d 910;  People v. Delacruz, 13 A.D.3d 642, 642-643, 786 N.Y.S.2d 321;  People v. Bhuiyan, 295 A.D.2d 622, 744 N.Y.S.2d 875;  People v. Bonner, 287 A.D.2d 728, 732 N.Y.S.2d 106).   The defendant failed to preserve for appellate review his contention that the preclusion of the alibi testimony violated his constitutional rights (see People v. Tucker, supra at 388, 798 N.Y.S.2d 910;  People v. Brown, 306 A.D.2d 12, 12-13, 761 N.Y.S.2d 630;  People v. Walker, 294 A.D.2d 218, 743 N.Y.S.2d 403).   In any event, the defendant's contentions regarding this issue are without merit (see People v. Tucker, supra at 388, 798 N.Y.S.2d 910;  People v. Walker, supra at 219, 743 N.Y.S.2d 403;  see also People v. Brown, supra at 13, 761 N.Y.S.2d 630).

 The defendant's challenge to the County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is also without merit.   The nature and extent of cross examination have always been subject to the sound discretion of the trial judge (id. at 374, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Caldwell, 23 A.D.3d 576, 806 N.Y.S.2d 639, lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 450, 845 N.E.2d 1281;  People v. Springer, 13 A.D.3d 657, 658, 787 N.Y.S.2d 386).   Here, the County Court struck an appropriate balance between the probative value of the evidence of the act underlying the defendant's adjudication as a youthful offender on the issue of his credibility (see generally People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444;  People v. Taylor, 18 A.D.3d 783, 784, 794 N.Y.S.2d 919) and the possible prejudice to the defendant (see People v. Caldwell, supra;  People v. Springer, supra at 658, 787 N.Y.S.2d 386).   The defendant failed to meet his burden of demonstrating that the prejudicial effect of the evidence so outweighed the probative worth of that evidence that its exclusion was warranted (see People v. Sandoval, supra at 378, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Caldwell, supra;  People v. Springer, supra at 658, 787 N.Y.S.2d 386).   The mere fact that the act underlying the defendant's adjudication as a youthful offender was similar in nature to the charged offenses did not warrant its preclusion (see People v. Springer, supra at 658, 787 N.Y.S.2d 386;  People v. Mack, 6 A.D.3d 551, 551, 775 N.Y.S.2d 345).   That a defendant chooses to specialize in a particular type of criminal activity does not immunize him from impeachment by use of prior bad acts or convictions (see People v. Springer, supra at 658, 787 N.Y.S.2d 386;  People v. Mack, supra at 551, 775 N.Y.S.2d 345).   Prior offenses may be probative of, inter alia, a “defendant's willingness to place his interests above those of society” (People v. Caldwell, supra;  see People v. Springer, supra at 658, 787 N.Y.S.2d 386).

 The County Court properly admitted into evidence People's Exhibit 51, a photograph depicting the victim's head during the autopsy with a metal probe passing through it demonstrating the path of one of the bullets that struck the victim (see generally People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   The photograph illustrated and elucidated the testimony of the doctor who performed the autopsy (see People v. Wood, supra at 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, supra at 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637;  People v. Allah, 13 A.D.3d 639, 639, 789 N.Y.S.2d 499;  People v. Roque, 11 A.D.3d 488, 489, 782 N.Y.S.2d 790;  People v. Morel, 297 A.D.2d 757, 757, 747 N.Y.S.2d 553;  People v. Collic, 285 A.D.2d 514, 515, 728 N.Y.S.2d 487);  was relevant to the issue of intent (see People v. Morel, supra at 757, 747 N.Y.S.2d 553;  People v. Collic, supra at 515, 728 N.Y.S.2d 487);  and was relevant to the jury in considering the defendant's account in his oral and written statements of how the shooting occurred, whether to corroborate his account or undermine it (see People v. Durkin, 303 A.D.2d 596, 597, 756 N.Y.S.2d 490;  see also People v. Pobliner, supra at 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637).   The photograph was not offered for the sole purpose of arousing the emotions of the jurors (see People v. Wood, supra at 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, supra at 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637;  People v. Roque, supra at 489, 782 N.Y.S.2d 790;  People v. Levy, 284 A.D.2d 346, 347, 725 N.Y.S.2d 878).

 The County Court providently exercised its discretion in permitting the jurors to take notes during a partial re-reading of the charge.   Although the defendant objected to the County Court's determination to permit the jury to take notes, he did not object to the County Court's cautionary instructions or suggest different language (see generally People v. Hues, 92 N.Y.2d 413, 419, 681 N.Y.S.2d 779, 704 N.E.2d 546).   Accordingly, the defendant's challenge to the adequacy of those instructions is unpreserved for appellate review (see People v. Taylor, 17 A.D.3d 174, 174-175, 793 N.Y.S.2d 29;  People v. Ramirez, 270 A.D.2d 185, 186, 707 N.Y.S.2d 6).   In any event, the County Court's instructions adequately conveyed the substance of the cautions set forth by the Court of Appeals in People v. Hues, supra at 419, 681 N.Y.S.2d 779, 704 N.E.2d 546.

 The defendant's challenges to certain remarks by the prosecutor in summation are unpreserved for appellate review as the defense counsel either failed to make specific and timely objections, or failed to seek curative instructions or move for a mistrial where the trial court sustained the defense counsel's objection (see CPL 470.05[2];  People v. Morris, 2 A.D.3d 652, 653, 768 N.Y.S.2d 379).   In any event, the challenged remarks were responsive to those of the defense counsel in summation and were fair comment on the evidence presented at trial (see People v. Pender, 8 A.D.3d 409, 409, 777 N.Y.S.2d 765;  People v. Indelecio, 8 A.D.3d 406, 407, 777 N.Y.S.2d 763;  People v. Nieves, 2 A.D.3d 539, 540, 767 N.Y.S.2d 913;  People v. Cariola, 276 A.D.2d 800, 800, 715 N.Y.S.2d 162).   Moreover, in making these remarks, the prosecutor did not express his personal beliefs concerning the truthfulness of the People's witnesses, and therefore it cannot be said that he improperly vouched for their credibility (see People v. Pender, supra at 410, 777 N.Y.S.2d 765;  People v. Indelecio, supra at 407, 777 N.Y.S.2d 763).