The People, etc., respondent, v. Jose Franco–Martinez, appellant. (2026)

Argued—May 26, 2026

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County (Helene F. Gugerty, J.), rendered June 27, 2023, convicting him of murder in the second 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, of the suppression of the defendant's statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court erred in denying suppression of a statement the defendant made to a police officer and a police medic prior to being advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436), and that the pre-Miranda questioning rendered his subsequent waiver of his Miranda rights invalid, is only partially preserved for appellate review (see CPL 470.05[2];  People v. Santjer, 190 AD3d 983).  In any event, the defendant's contention is without merit.  Pedigree questions may be asked of a defendant without providing Miranda warnings and are limited in scope to those necessary for processing a defendant or providing for his or her physical needs (see People v. Hester, 161 A.D.2d 665, 666).  “[W]hen a defendant challenges the application of the pedigree exception, the proper inquiry for the suppression court is whether the police used pedigree questions as a guise for improperly conducting an investigative inquiry without first providing Miranda warnings” (People v. Wortham, 37 NY3d 407, 415).  Here, the question posed related to the defendant's present physical condition, was appropriate for processing him, and fell within the exception for pedigree information (see id. at 413;  People v. Hester, 161 A.D.2d 665).  There was no evidence that the police officer or the medic were seeking to incriminate the defendant (see People v. Hester, 161 A.D.2d at 666).  Accordingly, the defendant's pre-Miranda statement did not merit suppression and did not invalidate his subsequent waiver of his Miranda rights.

The defendant's contention that the People failed to present legally sufficient evidence to establish his intent to kill the victim is unpreserved for appellate review, as the defendant failed to move for a trial order of dismissal on the basis of that specific claim (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 492;  People v. Williams, 124 AD3d 920, 921).  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 that the defendant intended to cause the victim's death (see People v. Williams, 124 AD3d at 921).  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 NY3d 342, 348), 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 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  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 NY3d 633).  The jury's determination that the defendant failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he stabbed and killed the victim was not against the weight of the evidence (Penal Law § 125.25[1][a][i];  see § 125.20[2];  People v. Waters, 159 AD3d 1021, 1022).  Considering the evidence presented, including the conflicting expert testimony, the jury reasonably concluded that the circumstances surrounding the commission of the crime were not indicative of a loss of self-control or similar mental infirmity (see People v. Kwas, 96 AD3d 877, 877–878), and that the defendant failed to show that a reasonable explanation or excuse existed for the alleged emotional disturbance (see People v. Waters, 159 AD3d at 1022;  People v. Torres, 144 A.D.2d 709).

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review, as defense counsel either failed to object or failed to request additional relief when the County Court sustained his objection (see CPL 470.05[2];  People v. Stewart, 244 AD3d 762, 766).  In any event, the remarks at issue were either within the bounds of permissible rhetorical comment or fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Johnson, 229 AD3d 639, 640).  To extent that some of the challenged remarks were improper, they were not so pervasive or egregious as to deprive the defendant of a fair trial (see People v. Spencer, 244 AD3d 1254).

Contrary to the defendant's contention, defense counsel's failure to object to certain prosecutorial remarks on summation did not deprive the defendant of the effective assistance of counsel (see People v. King, 27 NY3d 147, 159–160;  People v. Davis, 224 AD3d 703, 704).  The record reveals that defense counsel provided meaningful representation (see People v. Davis, 224 AD3d at 704).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

IANNACCI, J.P., VOUTSINAS, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court