PEOPLE v. SEPULVEDA (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered June 22, 2004, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Molea, J.), of that branch of the defendant's omnibus motion which was to suppress statements made to law enforcement officials.

ORDERED that the judgment is affirmed.

 After the court denied his motions to preclude identification testimony for lack of timely notice pursuant to CPL 710.30(3), the defendant proceeded with suppression hearings and received a full hearing on the fairness of the identification procedures.   Thus, “any alleged deficiency in the notice provided by the People was irrelevant” (People v. Kirkland, 89 N.Y.2d 903, 904-905, 653 N.Y.S.2d 256, 675 N.E.2d 1208;  see People v. Sigue, 300 A.D.2d 414, 415, 752 N.Y.S.2d 71).

 Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress his statements to law enforcement officials as the statements were made after an intelligent, knowing, and voluntary waiver of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and were not the product of coercion (see People v. Mateo, 2 N.Y.3d 383, 413-414, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Hendricks, 222 A.D.2d 74, 79, 646 N.Y.S.2d 845;  cf. People v. Anderson, 42 N.Y.2d 35, 39, 396 N.Y.S.2d 625, 364 N.E.2d 1318).

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 (see People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 504 N.E.2d 1079;  People v. Yusufi, 247 A.D.2d 648, 649, 669 N.Y.S.2d 66).   Moreover, 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, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mustafa, 132 A.D.2d 628, 629, 517 N.Y.S.2d 781).

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