The People, etc., respondent, v. Neil Johnson, appellant. (2014)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Neil Johnson, appellant.

2011–02402 2011–02404 (Ind.Nos. 214 /10, 215 /10)

Decided: February 19, 2014

WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN SANDRA L. SGROI ROBERT J. MILLER, JJ.

Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Suzanne H. Sullivan of counsel), for respondent. Contrary to the defendant's contention in his pro se supplemental brief, the Supreme Court properly denied that branch of his omnibus motion which was to suppress statements he made to law enforcement officials.   The hearing court's credibility determinations are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v Davis, 103 AD3d 810, 811;  People v Martinez, 58 AD3d 870, 870–871).   Here, the record amply supports the court's conclusion that the defendant's oral and written statements were admissible, since the hearing testimony established that the defendant was advised of, and voluntarily waived, his Miranda rights (see Miranda v Arizona, 384 U.S. 436) and did not invoke his right to counsel (see People v Rushion, 26 AD3d 448).   Moreover, under the circumstances presented, and since the defendant remained in continuous custody, the police were not required to re-administer the Miranda warnings before questioning the defendant again a few hours later (see People v Dayton, 66 AD3d 797, 798;  People v Hasty, 25 AD3d 740, 741;  People v Pierre, 300 A.D.2d 324).   The defendant's additional challenges to the suppression ruling raised in his pro se supplemental brief were not presented to the hearing court and, thus, are not properly before us on the appeals (see generally People v DeCampoamor, 91 AD3d 669, 670–671). The defendant's contention, advanced in his pro se supplemental brief, that, with respect to both convictions, the evidence was legally insufficient to establish that he displayed what appeared to be a firearm (see Penal Law § 160.15[4] ) is unpreserved for appellate review, since he did not make this contention in his motion to dismiss (see CPLR 470.05[2];  People v Gray, 86 N.Y.2d 10, 19;  People v Middleton, 52 AD3d 533).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d 633).