PEOPLE v. MADRID (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng., J.), rendered March 14, 2006, convicting him of murder in the second degree, attempted murder in the second degree (two counts), assault in the first degree (three 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 (Demakos, J.H.O.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The defendant's contention that the police pursuit and stop was not based on reasonable suspicion is without merit as the defendant was found in close temporal and spatial proximity to the scene of the subject crimes, fit the description given in the radio transmission, and was fleeing by bicycle as described in that transmission (see People v. Armsworth, 27 A.D.3d 571, 813 N.Y.S.2d 100;  People v. Martinez, 17 A.D.3d 606, 794 N.Y.S.2d 397;  People v. Sharpe, 259 A.D.2d 639, 687 N.Y.S.2d 652).  Once the police officers saw the defendant remove a gun from his clothing, that reasonable suspicion ripened into probable cause for his arrest (see People v. Strickland, 291 A.D.2d 420, 421, 737 N.Y.S.2d 302).

 There is no basis to disturb the hearing court's determination that the defendant knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).  The record supports the court's finding that the defendant had a sufficient command of the English language to appreciate the import of the Miranda warnings prior to both of his statements (see People v. Chu, 8 A.D.3d 399, 777 N.Y.S.2d 759;  People v. Zadorozhnyi, 267 A.D.2d 263, 264, 699 N.Y.S.2d 306;  People v. Alexandre, 215 A.D.2d 488, 626 N.Y.S.2d 520).

Thus, the hearing court properly denied those branches of the defendant's omnibus motion which were to suppress the physical evidence seized during his arrest and his statements to law enforcement officials.

 The Supreme Court did not err in directing that the terms of imprisonment imposed for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree were to run concurrently with one another but consecutively to the terms of imprisonment imposed for murder in the second degree, attempted murder in the second degree (two counts), and assault in the first degree (three counts).  The record supports the conclusion of the Supreme Court that the weapons possession offenses arose from an act separate from the acts underlying the remaining charges (see Penal Law § 70.25;  People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Reyes, 301 A.D.2d 540, 541, 752 N.Y.S.2d 902;  see also People v. Mack, 242 A.D.2d 543, 661 N.Y.S.2d 674).

The defendant's remaining contention, that the consecutive terms of imprisonment imposed violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, is unpreserved for appellate review (see People v. Daniels, 5 N.Y.3d 738, 740, 800 N.Y.S.2d 369, 833 N.E.2d 704, cert. denied 546 U.S. 988, 126 S.Ct. 573, 163 L.Ed.2d 479;  People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305;  People v. Crosby, 33 A.D.3d 719, 720, 821 N.Y.S.2d 908).