PEOPLE v. VASQUEZ

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

The PEOPLE, etc., respondent, v. Francisco VASQUEZ, appellant.

Decided: December 22, 2003

A. GAIL PRUDENTI, P.J., SONDRA MILLER, HOWARD MILLER, and THOMAS A. ADAMS, JJ. Scott Brettschneider, Kew Gardens, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Liftschitz, and Michael A. Wiesenfeld of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered February 14, 2001, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the Supreme Court erred in permitting a police officer to testify that the defendant admitted ownership of the store in which a bag containing heroin was discovered during the execution of a search warrant.   However, the defendant's contention is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Lee, 207 A.D.2d 415, 615 N.Y.S.2d 898).   In any event, the claim is without merit.   The officer's simple inquiry, which resulted in the defendant's statement, was justified to permit the officer to clarify the nature of the situation with which he was confronted, and was not designed to elicit inculpatory statements from the defendant.   Accordingly, it did not constitute a custodial interrogation for which administration of Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) was required, and the Supreme Court properly permitted the testimony (see People v. Clark, 172 A.D.2d 679, 568 N.Y.S.2d 961).

 The court officer's relating of messages between the Supreme Court and the jury fell within the scope of the court officer's authority to speak to the jurors in connection with his ministerial duties.   The court officer did not attempt to convey any legal instructions to the jury or to instruct the jurors on their duties and obligations.   Accordingly, there was no improper delegation of judicial authority and the defendant's presence was not required when the court officer spoke to the jury (see People v. Daughtry, 242 A.D.2d 731, 664 N.Y.S.2d 306;  People v. Bonaparte, 78 N.Y.2d 26, 571 N.Y.S.2d 421, 574 N.E.2d 1027).

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see People v. Gray, supra;  People v. Bardales, 300 A.D.2d 596, 751 N.Y.S.2d 866).   In any event, 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, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

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