PEOPLE v. HERNANDEZ (2009)

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered January 26, 2007, convicting him of robbery in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth 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 his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 We find no basis to disturb the hearing court's determination that the defendant knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   In particular, “[i]ntoxication alone is insufficient to render a statement involuntary.   Only where it is demonstrated that the defendant was intoxicated to a degree of mania or of being unable to understand the meaning of his statements is suppression warranted” (People v. Benjamin, 17 A.D.3d 688, 688, 793 N.Y.S.2d 547 [citations omitted];  see People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157;  People v. Ginsberg, 36 A.D.3d 627, 831 N.Y.S.2d 81).   Here, the evidence failed to establish that the defendant was intoxicated to such a degree.   Moreover, the evidence supported the hearing court's determination that the defendant appreciated the immediate import of the Miranda warnings (see People v. Williams, 62 N.Y.2d 285, 290, 476 N.Y.S.2d 788, 465 N.E.2d 327;  People v. Hernandez, 46 A.D.3d 574, 575-576, 846 N.Y.S.2d 371).

 The trial court did not err in denying the defendant's motion to sever his trial from that of his codefendant.  “ ‘[W]here proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance’ ” (People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34, quoting People v. Bornholdt, 33 N.Y.2d 75, 87, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).   Here, contrary to the defendant's contention, the record does not reveal an irreconcilable conflict between his defense and his codefendant's defense such that the conflict alone would have led the jury to infer the defendant's guilt (see People v. Williams, 48 A.D.3d 715, 852 N.Y.S.2d 298;  People v. Hernandez, 260 A.D.2d 399, 400, 688 N.Y.S.2d 185).

The defendant's request for a missing witness charge was untimely (see People v. Woods, 275 A.D.2d 332, 333, 712 N.Y.S.2d 407).   In any event, the Supreme Court properly denied that request (see People v. Smith, 49 A.D.3d 904, 855 N.Y.S.2d 572;  People v. Herrera, 285 A.D.2d 613, 614, 728 N.Y.S.2d 745;  People v. Cephas, 207 A.D.2d 903, 904, 616 N.Y.S.2d 668).

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, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (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, 638, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85-86, 455 N.Y.S.2d 675).