PEOPLE v. PHIPPS (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

We agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress the contents of plastic bags recovered from the ground near where the defendant was taken into custody, as the evidence at the suppression hearing established that the bags had been abandoned by the defendant (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. White, 153 A.D.3d 1369, 61 N.Y.S.3d 603;  People v. Brown, 52 A.D.3d 943, 945–946, 860 N.Y.S.2d 259;  People v. Oliver, 39 A.D.3d 880, 880–881, 835 N.Y.S.2d 308).  Accordingly, the defendant lacked standing to contest the officers' seizure and subsequent search of the bags (see People v. White, 153 A.D.3d 1369, 61 N.Y.S.3d 603;  People v. Oliver, 39 A.D.3d at 880–881, 835 N.Y.S.2d 308).

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.  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, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 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 failed to preserve for appellate review his contention that he was deprived of a fair trial by an improper remark made by the Supreme Court to prospective jurors during voir dire (see CPL 470.05[2];  People v. Porter, 153 A.D.3d 857, 857–858, 61 N.Y.S.3d 99;  People v. Gomez, 153 A.D.3d 724, 725, 61 N.Y.S.3d 70;  People v. Dudley, 151 A.D.3d 878, 879, 54 N.Y.S.3d 297).  Contrary to the defendant's contention, the court's remark did not constitute a mode of proceedings error exempt from the rules of preservation (see People v. Porter, 153 A.D.3d at 857–858, 61 N.Y.S.3d 99;  People v. Dudley, 151 A.D.3d at 879, 54 N.Y.S.3d 297).  In any event, the court's remark, while inappropriate, does not warrant reversal (see People v. Porter, 153 A.D.3d at 857–858, 61 N.Y.S.3d 99;  People v. Gomez, 153 A.D.3d at 725, 61 N.Y.S.3d 70;  People v. Dudley, 151 A.D.3d at 879, 54 N.Y.S.3d 297).  The defendant also failed to preserve for appellate review his contention that the prosecutor committed misconduct by failing to correct a portion of a witness's testimony that was purportedly false (see People v. Golson, 93 A.D.3d 1218, 940 N.Y.S.2d 423).  In any event, the purportedly false testimony was not material (see People v. Reckovic, 100 A.D.3d 427, 428, 953 N.Y.S.2d 210), and any error was harmless (see People v. Steadman, 82 N.Y.2d 1,9, 603 N.Y.S.2d 382, 623 N.E.2d 509;  People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).  Moreover, the cumulative effect of the two errors does not require reversal.

The defendant failed to preserve for appellate review his contention that comments by the Supreme Court relating to his purported disruptive behavior while representing himself pro se deprived him of the right to represent himself (see People v. Lucas, 131 A.D.3d 875, 876, 17 N.Y.S.3d 109).  In any event, the court's comments, made outside the jury's presence, were in furtherance of maintaining order and decorum in the courtroom and did not prejudice the defendant's ability to represent himself (see id. at 876, 17 N.Y.S.3d 109).

We agree with the Supreme Court's denial of the defendant's request to call additional witnesses.  Contrary to the defendant's contention in his pro se supplemental brief, the defendant “failed to make a sufficient offer of proof that the proposed testimony was relevant, offered in good faith, and not cumulative of other testimony” (People v. Greene, 110 A.D.3d 827, 829, 973 N.Y.S.2d 239).

The defendant expressly waived any objection to not being interviewed by the Department of Probation prior to being sentenced, and therefore, his contention that the matter should be remitted for resentencing after a Department of Probation interview is beyond the scope of appellate review (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Chavis, 91 N.Y.2d 500, 506, 673 N.Y.S.2d 29, 695 N.E.2d 1110).  Contrary to the defendant's contention, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

ROMAN, J.P., MILLER, CONNOLLY and IANNACCI, JJ., concur.