PEOPLE v. MURRAY

Reset A A Font size: Print

Supreme Court, Appellate Term, New York,

The PEOPLE of the State of New York, Respondent, v. Walter C. MURRAY, Jr., Appellant.

Decided: May 09, 2002

Present:  DOYLE, J.P., COLABELLA and WINICK, JJ. Gary E. Eisenberg, Monroe, for appellant. Francis D. Phillips, II, District Attorney, Goshen (David R. Huey of counsel), for respondent.

Judgment of conviction unanimously affirmed.

 We find that the accusatory instrument is not jurisdictionally defective since it alleges all of the elements of aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][ii] ).   Any objection defendant has regarding hearsay allegations of fact contained in the accusatory instrument has been waived since he failed to raise this issue in a pre-trial motion to dismiss (see, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233).

 The statutory prohibition against summary denial of a motion to suppress statements as involuntary (see, CPL 710.60[3][b] ) does not extend to motions to suppress statements due to an unlawful arrest (see, People v. Mendoza, 82 N.Y.2d 415, 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017).   Defendant's motion papers specifically requested that his statements be suppressed on the ground that they were involuntarily made;  defendant did not request a Dunaway hearing.   Consequently, we find that the trial court properly sustained the prosecutor's objection at the Huntley hearing to defense counsel's attempt to question the police officer regarding probable cause (see, People v. Covington, 144 A.D.2d 238, 533 N.Y.S.2d 433, lv. denied 73 N.Y.2d 890, 538 N.Y.S.2d 802, 535 N.E.2d 1342;  see also, People v. Toxey, 220 A.D.2d 204, 631 N.Y.S.2d 846).

 Further, defendant waived any claim regarding his objection to statements the trial court made to the jury during its preliminary instructions since he did not request further curative relief after the court sustained his objection and provided the jury with curative instructions (see, People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;  People v. Cruz, 177 A.D.2d 363, 576 N.Y.S.2d 109).   Moreover, there is no merit to defendant's contention that the court changed the theory of prosecution by instructing the jury that it could find him guilty if the People proved that he operated a vehicle while knowing or having reason to know that his license was “suspended or revoked”.   Although the factual portion of the accusatory instrument states that defendant was operating a vehicle while his license was revoked, the elements of aggravated unlicensed operation of a motor vehicle in the second degree requires that defendant operated a vehicle while knowing or having reason to know that his license was “suspended, revoked or otherwise withdrawn ․”. We find that the theory of the case remained the same as it was presented and tried, and the court did not present a theory to the jury which was not supported by the evidence adduced at trial or contained in the accusatory instrument (cf., People v. Duncan, 46 N.Y.2d 74, 412 N.Y.S.2d 833, 385 N.E.2d 572, cert. denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275;  People v. Perez, 194 A.D.2d 455, 599 N.Y.S.2d 269).

Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we also find that the evidence adduced at trial could lead a rational trier of fact to determine, beyond a reasonable doubt, that the evidence at trial satisfied the proof and burden requirements for every element of aggravated unlicensed operation of a motor vehicle in the second degree, and the verdict is not against the weight of the evidence (see, CPL 470.15;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further find that the sentence imposed was not unduly harsh or excessive and does not warrant a reduction in the interest of justice (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675;  see also, People v. Anderson, 154 A.D.2d 607, 546 N.Y.S.2d 435).   Defendant's remaining contention is unpreserved for appellate review.

MEMORANDUM.