PEOPLE v. CABRERA (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered October 7, 2003, convicting him of 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 (Joan O'Dwyer, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress his statement made in the presence of a law enforcement official.

ORDERED that the judgment is affirmed.

The defendant was subjected to a traffic stop and gave the police consent to search the trunk of the car.  During the search, police recovered a firearm from the trunk.  At the police precinct station house, an officer took the defendant to an arrest processing room where the defendant made a phone call to his attorney while the officer remained inside the room.  Prior to trial, the defendant moved, among other things, to suppress his statement made in the presence of the law enforcement official.  After a suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion.  After a jury trial, the defendant was convicted of criminal possession of a weapon in the third degree (Penal Law former § 265.02[4], now Penal Law § 265.03[3]).  At sentencing, the court adjudicated the defendant a second felony offender and sentenced him to five years’ imprisonment.  The defendant appeals.

The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the defendant's statement to his attorney made in the presence of a law enforcement official.  “[S]tatements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously” (People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205;  see People v. Cascio, 79 A.D.3d 1809, 1811, 914 N.Y.S.2d 490).  Here, the hearing testimony established that the defendant could see a police officer standing nearby when he made the phone call to his attorney and that he made the statement voluntarily and spontaneously, as it was not induced, provoked, or encouraged by any action of the police officer (see People v. Harris, 57 N.Y.2d at 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205;  People v. Fields, 212 A.D.3d 648, 649–650, 181 N.Y.S.3d 335).

Contrary to the defendant's contention, the Supreme Court properly denied his Batson challenges (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) to the prosecution's use of peremptory challenges to strike Black prospective jurors.  The prosecution offered race-neutral reasons for exercising the peremptory challenges, and the court's determination that those reasons were not pretextual is supported by the record (see People v. Brissett, 211 A.D.3d 964, 966, 180 N.Y.S.3d 267;  People v. Portious, 201 A.D.3d 820, 160 N.Y.S.3d 103).

The defendant's contention that there was legally insufficient evidence that the firearm was loaded is unpreserved for appellate review (see CPL 470.05[2]).  In any event, 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 it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  Moreover, 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, 348, 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;  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 defendant's contention that his right of confrontation was violated because he was deprived of the opportunity to cross-examine the witness who created the firearm report used to convict him is unpreserved for appellate review (see CPL 470.05[2];  People v. Liner, 9 N.Y.3d 856, 856–857, 840 N.Y.S.2d 755, 872 N.E.2d 868), and we decline to review the issue in the exercise of our interest of justice jurisdiction (see People v. Hairston, 213 A.D.3d 694, 695, 182 N.Y.S.3d 268;  People v. Gough, 203 A.D.3d 747, 747, 162 N.Y.S.3d 492).

The defendant's contention that Penal Law § 265.03(3), formerly Penal Law § 265.02(4), is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 is unpreserved for appellate review as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90;  People v. McDowell, 214 A.D.3d 1437, 186 N.Y.S.3d 473).  In any event, the defendant's contention is without merit.  The ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes (see People v. Manners, 217 A.D.3d at 686, 191 N.Y.S.3d 90).

The defendant's contention that his sentence as a second felony offender (see Penal Law § 70.06) was unconstitutional is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see CPL 470.05[2];  People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844;  People v. Munoz, 237 A.D.3d 1110, 1111, 230 N.Y.S.3d 414) and did not contest his criminal history, including the relevant periods of incarceration (see People v. Hernandez, 43 N.Y.3d 591, 239 N.Y.S.3d 59, 265 N.E.3d 1076).  We decline to review the contention in the exercise of our interest of justice jurisdiction (see People v. Munoz, 237 A.D.3d at 1111, 230 N.Y.S.3d 414).

GENOVESI, J.P., FORD, VENTURA and QUIRK, JJ., concur.