PEOPLE v. BRIDGES (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Donnino, J.), rendered April 29, 2003, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.   This appeal brings up for review the denial, after a hearing (Demakos, J.), of those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement officials and identification testimony.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, under the circumstances, the police were not required to readminister Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) prior to defendant's third interrogation (see People v. Gonzalez, 5 A.D.3d 696, 697, 774 N.Y.S.2d 739;  People v. Santalis, 302 A.D.2d 614, 755 N.Y.S.2d 311;  People v. James, 271 A.D.2d 456, 706 N.Y.S.2d 883;  People v. Holland, 268 A.D.2d 536, 537, 703 N.Y.S.2d 57;  see also People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99).   Further, since an inculpatory statement was legally obtained, the defendant's claim that his later videotaped statement should have been suppressed as tainted is without merit.

 While the People's failure to preserve the original printout of a photographic array gives rise to a presumption of suggestiveness (see People v. Wedgeworth, 156 A.D.2d 529, 548 N.Y.S.2d 790), the People presented evidence sufficient to overcome that presumption (see People v. Cordilione, 159 A.D.2d 864, 553 N.Y.S.2d 514).   The evidence presented before the hearing court established that each computer printout of the photographic array in question was virtually identical.

The defendant's challenge to the legal sufficiency of the evidence with respect to his conviction of depraved indifference murder 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. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329;  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Connelly, 32 A.D.3d 863, 864, 821 N.Y.S.2d 614), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. Folkes, 43 A.D.3d 956, 956-957, 841 N.Y.S.2d 365;  People v. Connelly, 32 A.D.3d at 864, 821 N.Y.S.2d 614).

 The Supreme Court properly imposed consecutive sentences for the defendant's murder convictions because the offenses were separate and distinct acts, notwithstanding that they arose out of a single transaction (see People v. Eddie, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Brown, 80 N.Y.2d 361, 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353;  People v. Boone, 30 A.D.3d 535, 536, 816 N.Y.S.2d 570;  People v. Maldonado, 5 A.D.3d 505, 506-507, 772 N.Y.S.2d 583;  People v. Porter, 256 A.D.2d 363, 364, 681 N.Y.S.2d 348).   Further, the defendant's challenge to his sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is without merit (see People v. Azaz, 41 A.D.3d 610, 610-611, 837 N.Y.S.2d 339;  People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305;  People v. Pritchett, 29 A.D.3d 828, 814 N.Y.S.2d 281).   The Supreme Court did not engage in any fact-finding, but instead, implicitly made a legal determination based on facts already found by the jury (see People v. Azaz, 41 A.D.3d at 610-611, 837 N.Y.S.2d 339;  People v. Bryant, 39 A.D.3d at 769, 834 N.Y.S.2d 305;  People v. Pritchett, 29 A.D.3d at 829, 814 N.Y.S.2d 281).

The defendant received the effective assistance of counsel, both at the hearing and at trial (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Hobot, 84 N.Y.2d 1021, 1022, 622 N.Y.S.2d 675, 646 N.E.2d 1102;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  see also People v. Danielson, 9 N.Y.3d 342, 350, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Pacheco, 50 A.D.3d 1063, 855 N.Y.S.2d 676).

The defendant's contention that the court failed to properly swear any of the prospective jurors in accordance with CPL 270.15(1)(a) is without merit (cf. People v. Hoffler, 53 A.D.3d 116, 121, 860 N.Y.S.2d 266), as is his contention that the court failed to properly swear in the seated jurors in accordance with CPL 270.15(2).

The defendant's remaining contention is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction.