PEOPLE v. BALIUKONIS (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered July 6, 2005, convicting him of reckless endangerment in the second degree and attempted assault in the third degree, 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 made by him to law enforcement authorities.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50(5).

 The defendant's contention that the People failed to prove his identity as one of the perpetrators beyond a reasonable doubt is unpreserved for appellate review since he did not specify this ground in his motion to dismiss at trial (see CPL 470.05[2];  People v. Cooper, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9).   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.   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   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 Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to the police.   The factual findings and credibility determinations of the Supreme Court following a suppression hearing are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v. Tissiera, 22 A.D.3d 611, 801 N.Y.S.2d 747).   Here, the Supreme Court properly found that the defendant's spontaneous statement, made after a police officer arrested him but before Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) were administered, was not triggered by any police conduct which could reasonably have been expected to evoke a declaration from him (see People v. Rivers, 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862;  People v. West, 237 A.D.2d 315, 654 N.Y.S.2d 390).   Additionally, the Supreme Court properly determined that the defendant's statements after the Miranda warnings were administered were voluntarily made after he knowingly and intelligently waived his Miranda rights (see Miranda v. Arizona, supra;  People v. Williams, 62 N.Y.2d 285, 289, 476 N.Y.S.2d 788, 465 N.E.2d 327).

The defendant's claim that his convictions are legally repugnant with one another is unpreserved for appellate review (see People v. Graham, 307 A.D.2d 935, 762 N.Y.S.2d 889;  People v. Mayo, 277 A.D.2d 397, 716 N.Y.S.2d 883) and, in any event, this claim is without merit as the jury could have found that the defendant intended to cause physical injury while recklessly creating a grave risk that death would ensue from his actions (see People v. Trappier, 87 N.Y.2d 55, 59, 637 N.Y.S.2d 352, 660 N.E.2d 1131).   The defendant's remaining arguments regarding repugnancy are without merit.