PEOPLE v. SANTOS (2007)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.), rendered May 25, 2005, convicting him of conspiracy in the second degree (two counts) and criminal solicitation in the second degree (two counts), 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 statements he made to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant was accused of conspiring with another individual to kill a third person who was involved with the defendant's ex-girlfriend.   During the course of the conspiracy, the co-conspirator became an informant for the police and cooperated with the investigation and prosecution of the defendant.

 The hearing court properly declined to suppress the defendant's statements to police, since, contrary to the defendant's contention, the defendant was not subjected to interrogation before being advised of his rights (see People v. Howard, 60 N.Y.2d 999, 1001, 471 N.Y.S.2d 549, 459 N.E.2d 842;  People v. Davis, 32 A.D.3d 445, 446, 821 N.Y.S.2d 217, lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995;  People v. Boyd, 21 A.D.3d 1428, 1429, 801 N.Y.S.2d 469;  People v. Morgan, 277 A.D.2d 331, 715 N.Y.S.2d 754).   Any statements uttered by the defendant after the administration of Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) were a product of a knowing waiver (see People v. Morgan, supra ).

 Testimony that the defendant previously threatened the intended victim with a knife was properly admitted into evidence at trial for the purpose of establishing the defendant's motive and intent with respect to the crimes charged (see People v. Alvino, 71 N.Y.2d 233, 241-42, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Gorham, 17 A.D.3d 858, 860, 793 N.Y.S.2d 281;  People v. Kampshoff, 53 A.D.2d 325, 334, 385 N.Y.S.2d 672, cert. denied 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1096).   Additionally, the admission into evidence of taped recordings of the defendant and a coconspirator, in furtherance of and during the course of the conspiracy, was proper as part of the res gestae (see People v. Rastelli, 37 N.Y.2d 240, 244, 371 N.Y.S.2d 911, 333 N.E.2d 182, cert. denied 423 U.S. 995, 96 S.Ct. 421, 46 L.Ed.2d 369) even where, as here, the coconspirator was an undercover informant (see People v. Rolle, 282 A.D.2d 624, 723 N.Y.S.2d 381;  People v. Bongarzone, 116 A.D.2d 164, 171, 500 N.Y.S.2d 532, affd. 69 N.Y.2d 892, 515 N.Y.S.2d 227, 507 N.E.2d 1083).

 The trial court properly declined the defendant's request to charge the jury with the affirmative defense of entrapment since no reasonable view of the evidence supported the defense (see Penal Law § 40.05;  People v. Butts, 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 533 N.E.2d 660;  People v. Skervin, 17 A.D.3d 771, 772, 792 N.Y.S.2d 716).

 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.   Resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  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).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra ).

The sentence imposed was not excessive (see CPL 470.15[2][c], [6] [b];  CPL 470.20[6];  People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.