PEOPLE v. BURGOS SANTOS

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Luis BURGOS-SANTOS, Defendant-Appellant.

Decided: October 18, 2001

SULLIVAN, P.J., WILLIAMS, TOM, MAZZARELLI and ANDRIAS, JJ. Lynetta M. St. Clair, for Respondent. Allen Fallek, for Defendant-Appellant. Defendant-Appellant, Pro Se.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered July 22, 1998, convicting defendant, after a jury trial, of murder in the second degree, and criminal possession of a weapon in the second degree and sentencing him, as a second violent felony offender, to concurrent terms of 25 years to life and 15 years, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues of credibility, including the weight to be given to the minor inconsistencies in the testimony of the People's numerous eyewitnesses, were properly considered by the trier of facts and there is no basis upon which to disturb its determinations.   The evidence established that defendant acted with depraved indifference to human life when he retrieved a gun from his car, aimed it at three unarmed men, two of whom were fleeing, and, despite the presence in close proximity of numerous other persons, fired several shots, causing the victim's death (see, People v. Languena, 129 A.D.2d 587, 514 N.Y.S.2d 83).

 The court properly permitted the prosecutor to impeach defendant with his withdrawn and untruthful alibi notice, since the notice was a prior inconsistent statement and an informal judicial admission (see, People v. Rivera, 58 A.D.2d 147, 396 N.Y.S.2d 26, affd. 45 N.Y.2d 989, 413 N.Y.S.2d 146, 385 N.E.2d 1073;  People v. White, 228 A.D.2d 209, 644 N.Y.S.2d 16, lv. denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346;  People v. Shuff, 168 A.D.2d 348, 564 N.Y.S.2d 132, lv. denied 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589).   The circumstances clearly warrant the inference that defendant was the source of the false alibi, and, in any event, defense counsel was defendant's authorized agent for the purpose of making the representations contained in the alibi notice, so that such representations were binding upon defendant (People v. Brown, 282 A.D.2d 312, 726 N.Y.S.2d 1;  compare, People v. Cassas, 84 N.Y.2d 718, 622 N.Y.S.2d 228, 646 N.E.2d 449).   To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice.

The record establishes that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).   We perceive no basis for reduction of sentence.