PEOPLE v. GINSBERG (2007)

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered May 28, 2002, convicting him of burglary in the second degree (two counts), robbery in the third degree, grand larceny in the fourth degree, petit larceny (four counts), and burglary in the third degree, after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress oral and written statements to law enforcement officials.

ORDERED that the judgment is affirmed.

There is no merit to the defendant's contention that his waiver of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) was invalid and that his statements to law enforcement officials were involuntary (see People v. Williams, 62 N.Y.2d 285, 287, 476 N.Y.S.2d 788, 465 N.E.2d 327;  People v. McIver, 15 A.D.3d 677, 791 N.Y.S.2d 587;  People v. Fergus, 270 A.D.2d 357, 358, 704 N.Y.S.2d 864).   The evidence at the suppression hearing did not support the conclusion that the defendant was “intoxicated to the degree of mania, or of being unable to understand the meaning of his statements” (People v. Shields, 295 A.D.2d 374, 742 N.Y.S.2d 909, quoting People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305).   Further, the investigating police officer's promise to assist the defendant in obtaining a place in a drug rehabilitation program did not render his prior confession involuntary (see People v. Pugh, 201 A.D.2d 934, 607 N.Y.S.2d 761;  People v. Baird, 167 A.D.2d 693, 563 N.Y.S.2d 274).   Accordingly, those branches of the defendant's omnibus motion which were to suppress his oral and written statements to the police were properly denied.

The defendant contends that the prosecution failed to prove his guilt by legally sufficient evidence because he was not responsible by reason of mental disease or defect (see Penal Law § 40.15).   This contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Sweeney, 16 A.D.3d 602, 792 N.Y.S.2d 149).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   The People offered expert testimony to rebut the testimony of the defense expert that the defendant suffered from a mental disease or defect of sufficient severity which would interfere with his ability to form the intent to commit the crimes (see People v. Rahman, 202 A.D.2d 696, 609 N.Y.S.2d 290).   The conflicting expert testimony created a credibility issue for the trier of fact to resolve (see People v. Gardella, 5 A.D.3d 695, 696, 774 N.Y.S.2d 740;  People v. Esmail, 260 A.D.2d 396, 397, 688 N.Y.S.2d 186), and its determination is clearly supported by the record (see People v. Fischl, 182 A.D.2d 699, 582 N.Y.S.2d 467;  People v. Surdak, 167 A.D.2d 436, 561 N.Y.S.2d 840).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

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