PEOPLE v. HERNANDEZ (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 20, 2006, convicting him of 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 (Hall, J.), after a hearing, 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.

 A suspect's right to remain silent, once unequivocally and unqualifiedly invoked, must be “scrupulously honored” (Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717).   In the event that a suspect invokes his [or her] right to remain silent, “interrogation must cease” and the suspect “may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime” (People v. Ferro, 63 N.Y.2d at 322, 482 N.Y.S.2d 237, 472 N.E.2d 13;  see People v. Brown, 266 A.D.2d 838, 700 N.Y.S.2d 605).

 Here, the defendant did not unequivocally invoke his right to remain silent after receiving Miranda warnings;  he simply told the police officer that he was only willing to speak to a detective.   Thus, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials (see People v. Ingram, 19 A.D.3d 101, 102, 795 N.Y.S.2d 592;  People v. Rogers, 245 A.D.2d 395, 396, 666 N.Y.S.2d 440).

 The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  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 (see Penal Law §§ 265.02, 265.03;  People v. Longshore, 86 N.Y.2d 851, 852, 633 N.Y.S.2d 475, 657 N.E.2d 496;  People v. Johnson, 46 A.D.3d 838, 839, 849 N.Y.S.2d 82;  People v. Hilaire, 270 A.D.2d 359, 359-360, 705 N.Y.S.2d 382).   In fulfilling our responsibility to conduct an independent review of the weight 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, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 To the extent that the defendant contends that the jury verdict was repugnant, that contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280).   In any event, the verdict was not repugnant, since the defendant's acquittal on the count of murder in the second degree did not negate any of the elements of criminal possession of a weapon in the second degree or criminal possession of a weapon in the third degree (see People v. Jackson, 50 A.D.3d 700, 853 N.Y.S.2d 915;  People v. Smith, 23 A.D.3d 416, 417, 804 N.Y.S.2d 774;  People v. Steward, 213 A.D.2d 570, 624 N.Y.S.2d 60).

Contrary to the defendant's contention, he was not denied the effective assistance of counsel.   Viewing the record as a whole, the defendant received meaningful representation (see People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 146-47, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675).