PEOPLE v. GARRETT

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

The PEOPLE, etc., respondent, v. Mark GARRETT, appellant.

Decided: June 28, 2004

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, BARRY A. COZIER, and ROBERT A. LIFSON, JJ. Robert C. Mitchell, Riverhead, N.Y. (Monroe A. Semble of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Copertino, J.), rendered June 13, 2000, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Pitts, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 The evidence at the suppression hearing established that there was probable cause for the defendant's arrest (see People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015).   The evidence also established that after the defendant was arrested, he voluntarily made certain incriminating statements after being advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Williams, 62 N.Y.2d 285, 476 N.Y.S.2d 788, 465 N.E.2d 327;  People v. Bebeck, 258 A.D.2d 660, 685 N.Y.S.2d 785).   Under these circumstances, the hearing court correctly refused to suppress those statements.

 The People contend that, notwithstanding the defendant's motion to dismiss made at the close of the People's case, because the defendant did not move to dismiss after he presented evidence and witnesses on his behalf, his contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review.   Contrary to the People's contention, the defendant's appellate challenge to the legal sufficiency of the evidence is preserved for review (see People v. Soto, 8 A.D.3d 683, 779 N.Y.S.2d 251 [decided herewith] ).   Viewing all of the evidence at trial 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 (see Penal Law § 125.25[2];  People v. Elliott, 288 A.D.2d 907, 732 N.Y.S.2d 392;  People v. De Jac, 219 A.D.2d 102, 106, 637 N.Y.S.2d 874;  People v. Robinson, 205 A.D.2d 836, 613 N.Y.S.2d 284;  see also Penal Law § 125.25[3];  People v. Ward, 192 A.D.2d 880, 597 N.Y.S.2d 178;  People v. Haims, 171 A.D.2d 878, 567 N.Y.S.2d 805;  People v. Coleman, 119 A.D.2d 585, 500 N.Y.S.2d 755).   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[2] ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, are without merit.

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