PEOPLE v. JACKSON (2010)

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered May 16, 2008, convicting him of 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, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

To the extent that the defendant challenges the search of a backpack found in his girlfriend's vehicle on the ground that there was no probable cause for the search, his contention is unpreserved for appellate review (see CPL 470.05 [2];  People v. Pagan, 221 A.D.2d 571, 571-572, 633 N.Y.S.2d 829) and, in any event, is without merit (see People v. Millan, 69 N.Y.2d 514, 519, 516 N.Y.S.2d 168, 508 N.E.2d 903;  People v. Robinson, 38 A.D.3d 572, 573, 832 N.Y.S.2d 585;  People v. Gonzalez, 25 A.D.3d 620, 621, 810 N.Y.S.2d 87;  People v. DeLaCruz, 242 A.D.2d 410, 411, 662 N.Y.S.2d 300;  People v. Fredericks, 234 A.D.2d 472, 473, 651 N.Y.S.2d 139).

 “The defendant['s] [contention] that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt because the testimony of the accomplice was uncorroborated ․ is unpreserved for appellate review, as the defendant failed to move for dismissal at trial on this specific ground” (People v. Forino, 39 A.D.3d 664, 665, 833 N.Y.S.2d 603;  see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Payne, 3 N.Y.3d 266, 280, 786 N.Y.S.2d 116, 819 N.E.2d 634).   In any event, 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 beyond a reasonable doubt (see Penal Law § 265.03[3];  People v. Laing, 66 A.D.3d 1353, 886 N.Y.S.2d 287;  People v. Tillery, 60 A.D.3d 1203, 1205, 875 N.Y.S.2d 343;  see also People v. Curry, 52 A.D.3d 731, 731, 861 N.Y.S.2d 696).

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 contention that the admission into evidence of certain tape-recorded 911 calls violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution is unpreserved for appellate review (see People v. Gonzalez, 44 A.D.3d 871, 872, 842 N.Y.S.2d 922;  see also CPL 470.05[2];  People v. Ward, 57 A.D.3d 582, 583, 868 N.Y.S.2d 297;  People v. Mitchell, 35 A.D.3d 507, 507, 826 N.Y.S.2d 144). In any event, admission of the caller's statements to the 911 operator did not violate the defendant's right of confrontation because the statements were not testimonial (see People v. Drummond, 34 A.D.3d 492, 493, 824 N.Y.S.2d 126;  see also People v. Mitchell, 35 A.D.3d at 508, 826 N.Y.S.2d 144;  People v. Conyers, 33 A.D.3d 929, 930, 824 N.Y.S.2d 301;  People v. Cato, 22 A.D.3d 863, 863, 802 N.Y.S.2d 753;  People v. Marino, 21 A.D.3d 430, 431, 800 N.Y.S.2d 439, cert. denied 548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958).

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

The defendant's remaining contentions, including those raised in his supplemental pro se brief, do not require reversal.