PEOPLE v. BIGELOW (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered January 23, 2007, convicting him of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Collini, 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.

In his omnibus motion, the defendant, who made certain statements to law enforcement officials after being arrested, sought, inter alia, a Dunaway and Huntley hearing (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179). Although it is unclear from the record whether that branch of the motion which was for a Dunaway hearing was withdrawn by the defendant or overlooked by the hearing court, it is clear that the hearing court, which properly determined that the defendant's statements were voluntarily made (see People v. Cooper, 36 A.D.3d 828, 830 N.Y.S.2d 181), never issued a ruling on that branch of that motion. By acquiescing in the lack of a ruling, the defendant abandoned that branch of the motion, thereby rendering his present Dunaway claim unpreserved for appellate review (see CPL 470.05[2]; People v. Anderson, 52 A.D.3d 1320, 1320-1321, 859 N.Y.S.2d 852; People v. Henriquez, 246 A.D.2d 427, 668 N.Y.S.2d 34). We decline to review that claim in the exercise of our interest of justice jurisdiction.

To the extent the defendant's claims of ineffective assistance of counsel are based upon matter dehors the record, they may not be reviewed on direct appeal (see People v. Ballinger, 62 A.D.3d 895, 880 N.Y.S.2d 650; People v. Rosas, 306 A.D.2d 91, 92, 759 N.Y.S.2d 866). Insofar as we are able to review those claims, defense counsel provided the defendant with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698).

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. Moreover, in fulfilling our responsibility to conduct an independent review 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 nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see 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; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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).