PEOPLE v. WHAUL

Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. Dwayne WHAUL, appellant.

Decided: June 30, 2009

REINALDO E. RIVERA, J.P., PETER B. SKELOS, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ. Murray E. Singer, Great Neck, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered February 9, 2006, convicting him of manslaughter in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

ORDERED that the judgment is affirmed.

 “The Supreme Court properly found that the defendant's spontaneous [statement], made after a police officer arrested him but before Miranda warnings [see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] were administered, [was] not triggered by any police questioning or other conduct which reasonably could have been expected to elicit a declaration from him” (People v. Whyte, 47 A.D.3d 852, 853, 850 N.Y.S.2d 184;  see People v. Lynes, 49 N.Y.2d 286, 294-295, 425 N.Y.S.2d 295, 401 N.E.2d 405;  People v. Thrower, 175 A.D.2d 818, 819, 573 N.Y.S.2d 297).   Moreover, the Supreme Court providently exercised its discretion in denying the defendant's request to call one of the arresting officers to testify at the pretrial hearing.   The defendant's request was not supported by a “bona fide factual predicate” (People v. Witherspoon, 66 N.Y.2d 973, 974, 498 N.Y.S.2d 789, 489 N.E.2d 758) demonstrating that the witness might provide material, noncumulative evidence (see People v. Fowler, 61 A.D.3d 698, 876 N.Y.S.2d 498;  People v. Smith, 37 A.D.3d 302, 303, 831 N.Y.S.2d 128;  People v. Lawrence, 184 A.D.2d 586, 587, 584 N.Y.S.2d 641, cert. denied 507 U.S. 933, 113 S.Ct. 1317, 122 L.Ed.2d 704;  People v. Bailey, 179 A.D.2d 662, 662, 579 N.Y.S.2d 106).   Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress his statement to law enforcement officials.

 Viewing the record as a whole, the defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).  “Defense counsel prepared and pursued trial strategies and defense theories, presented a clear and cogent summation, and adequately cross-examined the People's witnesses to develop his defense theories” (People v. Dashosh, 59 A.D.3d 731, 732, 873 N.Y.S.2d 730;  see People v. Constas, 59 A.D.3d 729, 730, 875 N.Y.S.2d 103;  People v. Adams, 12 A.D.3d 523, 523, 783 N.Y.S.2d 867).

 Although the Supreme Court erred in precluding cross-examination of one of the eyewitnesses regarding certain prior misconduct which was relevant to his general credibility (see People v. Chestnut, 237 A.D.2d 528, 528, 656 N.Y.S.2d 903;  People v. Jones, 193 A.D.2d 696, 697, 598 N.Y.S.2d 40;  People v. Phifer, 177 A.D.2d 518, 518, 575 N.Y.S.2d 720;  People v. Blanchard, 150 A.D.2d 705, 705-706, 541 N.Y.S.2d 578;  People v. Robinson, 133 A.D.2d 859, 861, 520 N.Y.S.2d 415;  People v. Batista, 113 A.D.2d 890, 891, 493 N.Y.S.2d 608;  People v. Watson, 111 A.D.2d 888, 888, 491 N.Y.S.2d 24), this error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his conviction (see People v. Allen, 50 N.Y.2d 898, 899, 430 N.Y.S.2d 588, 408 N.E.2d 917;  People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Chestnut, 237 A.D.2d 528, 528, 656 N.Y.S.2d 903;  People v. Blanchard, 150 A.D.2d 705, 705-706, 541 N.Y.S.2d 578;  People v. Batista, 113 A.D.2d 890, 891, 493 N.Y.S.2d 608).

Copied to clipboard