PEOPLE v. CABRERA (2009)

Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace, J.), rendered September 13, 2006, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Zambelli, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The defendant's contention that the record developed at the Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) established that his statements were the product of an illegal arrest is unpreserved for appellate review (see People v. Park, 43 A.D.3d 1074, 1075, 842 N.Y.S.2d 61;  People v. Mitchell, 303 A.D.2d 422, 423, 755 N.Y.S.2d 867).   In any event, it was the defendant's failure to seek a Dunaway hearing (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824), “ ‘and not a failure of proof by the People that resulted in evidence of the legality of the [arrest] remaining undeveloped’ ” (People v. Fountaine, 269 A.D.2d 748, 748, 703 N.Y.S.2d 617, quoting People v. Giles, 73 N.Y.2d 666, 671, 543 N.Y.S.2d 37, 541 N.E.2d 37).   This Court may not rely upon the record of the Huntley hearing to decide the merits of an unlitigated ground for suppression (see People v. Fountaine, 269 A.D.2d at 748, 703 N.Y.S.2d 617).

 The defendant's contention that the People failed to prove, by legally sufficient evidence, that he acted with the intent to cause serious physical injury is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492-493, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Chakrabarty, 27 A.D.3d 657, 658, 810 N.Y.S.2d 686).   In any event, the evidence was legally sufficient to establish that the defendant acted with the intent to cause serious physical injury (see People v. Camus, 255 A.D.2d 392, 681 N.Y.S.2d 52;  People v. Williams, 240 A.D.2d 441, 442, 658 N.Y.S.2d 102) and that the victim suffered serious physical injury (see People v. Kearney, 24 A.D.3d 1105, 1106, 806 N.Y.S.2d 777;  People v. Rivera, 300 A.D.2d 168, 168-169, 751 N.Y.S.2d 731;  People v. Tatta, 177 A.D.2d 674, 576 N.Y.S.2d 368).   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, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nonetheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (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 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 was afforded meaningful representation (see People v. Henry, 95 N.Y.2d 563, 565, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Haggerty, 48 A.D.3d 480, 851 N.Y.S.2d 626).

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

The defendant's contention, raised in point one of his brief, concerning alleged prosecutorial misconduct, is unpreserved for appellate review, and the defendant's remaining contentions are without merit.