PEOPLE v. RODRIGUEZ (2010)

Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.), rendered October 31, 2006, convicting him of burglary in the first degree, robbery in the first degree (three counts), criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Sullivan, 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.

 The defendant moved, inter alia, to suppress his statements to law enforcement officials on the ground that they were the fruits of an unlawful arrest (see Wong Sun v. United States, 371 U.S. 471, 486-488, 83 S.Ct. 407, 9 L.Ed.2d 441).   The hearing court properly denied that motion.   About an hour and a half after a report of three armed robbers in a private residence, the defendant was observed at a train station about a mile and a half from the residence, fitting the general description of one of the perpetrators.   When the defendant pulled a shiny gray object from his clothing, the detective who arrested the defendant reasonably feared for his safety and took the protective measure of grabbing the defendant's wrist, causing him to drop two cell phones (see People v. Holmes, 36 A.D.3d 714, 715-716, 828 N.Y.S.2d 181;  People v. Johnson, 22 A.D.3d 371, 372, 802 N.Y.S.2d 444;  People v. Lynch, 285 A.D.2d 518, 519, 728 N.Y.S.2d 489). The defendant explained that he had been at a party with a relative, whom he identified by name.   The detective learned from a fellow officer that the cell phones were proceeds of the robbery and that the name the defendant had mentioned was an alias of one of the perpetrators already in custody.   In making the arrest, the detective was entitled to rely upon this additional information (see People v. Ketcham, 93 N.Y.2d 416, 419-420, 690 N.Y.S.2d 874, 712 N.E.2d 1238;  People v. Grandsoult, 295 A.D.2d 362, 363, 742 N.Y.S.2d 917;  cf. People v. Eastman, 32 A.D.3d 965, 965-966, 821 N.Y.S.2d 263).   Under all the circumstances, the detective had probable cause to arrest the defendant (see People v. Velez, 59 A.D.3d 572, 574-575, 873 N.Y.S.2d 657;  People v. Morales, 58 A.D.3d 873, 874, 872 N.Y.S.2d 192;  People v. Grandsoult, 295 A.D.2d at 363, 742 N.Y.S.2d 917).

 The hearing court also properly rejected the defendant's argument that his inculpatory statement made to law enforcement officials was involuntary.   The defendant was arrested at 9:20 P.M., and at 10:06 P.M. he was advised of, and voluntarily waived, his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   He immediately made oral statements denying his involvement.   During a second round of questioning, the defendant made an inculpatory statement, starting at 4:25 A.M., culminating in his signing of a written transcription of that statement at 5:50 A.M. Based on the totality of the circumstances (see People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318), including the duration and conditions of detention, the conduct and demeanor of the police toward the defendant, and the age, physical state, and mental state of the defendant, his post-Miranda statements were voluntarily made (see People v. Pegues, 59 A.D.3d 570, 571-572, 873 N.Y.S.2d 160;  People v. Lee, 30 A.D.3d 760, 762, 816 N.Y.S.2d 618;  People v. Baker, 208 A.D.2d 758, 758-759, 617 N.Y.S.2d 798;  People v. Kranz, 180 A.D.2d 760, 760-761, 580 N.Y.S.2d 395;  cf. People v. Anderson, 42 N.Y.2d at 38-41, 396 N.Y.S.2d 625, 364 N.E.2d 1318).

 The defendant's contention that the police should have advised him of his Miranda rights a second time is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, contrary to the defendant's contention, under the circumstances herein, the police were not required to readminister the Miranda warnings prior to his statement made approximately 6 1/212 hours after first questioning him, as he remained in continuous custody and voluntarily waived his rights (see People v. Bridges, 63 A.D.3d 752, 880 N.Y.S.2d 341, lv. denied;  People v. Petronio, 34 A.D.3d 602, 604, 825 N.Y.S.2d 99;  People v. Gonzalez, 5 A.D.3d 696, 697, 774 N.Y.S.2d 739).

 The defendant further contends that a post-arrest photographic identification should have been suppressed on the ground that the People failed to establish an independent source for the witness's identification of him in light of the media coverage of his arrest.   This contention is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, the defendant failed to adduce any evidence of undue suggestiveness in the pretrial identification procedure, and the People, accordingly, had no burden of establishing an independent source for the identification (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162;  People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608;  cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).

Viewing the evidence in the light most favorable to the prosecution (see 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 of each offense of which he was convicted beyond a reasonable doubt.   Moreover, 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, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's remaining contentions are without merit.