PEOPLE v. WADE (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William O'Brien, J.), rendered October 24, 2016, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Meryl J. Berkowitz, J.), of the suppression of the defendant's statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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.  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, 348–349, 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;  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, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that the Supreme Court erred in failing to give a circumstantial evidence charge is unpreserved for appellate review and, in any event, without merit (see People v. Cruz–Checo, 136 A.D.3d 840, 24 N.Y.S.3d 526).  The defendant's contention regarding remarks made by the prosecutor at trial regarding the burden of proof is also unpreserved for appellate review and, in any event, without merit (see People v. George, 2 A.D.3d 457, 767 N.Y.S.2d 827).

We agree with the Supreme Court's determination that the defendant's statements to the police were admissible.  The defendant's right to counsel did not attach, as he did not request to speak to an attorney, and no attorney retained to represent him entered the matter under investigation (see People v. Grice, 100 N.Y.2d 318, 321, 763 N.Y.S.2d 227, 794 N.E.2d 9;  People v. Washington, 107 A.D.3d 4, 10, 964 N.Y.S.2d 176, affd 23 N.Y.3d 228, 989 N.Y.S.2d 670, 12 N.E.3d 1099).  An attorney enters a case by actually appearing or directly communicating with the police, which did not occur here (see People v. Grice, 100 N.Y.2d at 322, 763 N.Y.S.2d 227, 794 N.E.2d 9;  People v. Ellis, 117 A.D.3d 843, 985 N.Y.S.2d 727;  People v. Borukhova, 89 A.D.3d 194, 213, 931 N.Y.S.2d 349).

The defendant's contention that his trial counsel was ineffective is without merit.  The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 146–147, 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, 455 N.Y.S.2d 675).

RIVERA, J.P., DILLON, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.