PEOPLE v. ORLANDO

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

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

Decided: April 28, 2009

REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, DANIEL D. ANGIOLILLO, and RUTH C. BALKIN, JJ. Bassett & Bassett, P.C., Central Islip, N.Y. (Kerry Bassett of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Sarah Spatt of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (D. Sullivan, J.), rendered August 18, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Honorof, 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 defendant was convicted of murder in the second degree for causing the death of Robert Calabresse, a bookmaker with whom the defendant placed gambling bets.   Within five days of the murder, following a police investigation, the defendant was arrested based on outstanding bench warrants for prior pending, unrelated, vehicle and traffic charges and to investigate his involvement in the murder. The detectives never questioned the defendant with respect to those traffic matters, limiting questioning to the murder allegations after the defendant received and waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694).   The defendant then made incriminating statements about his involvement in the murder.

 On appeal, the defendant contends that his inculpatory statements to the police should have been suppressed because they were obtained in violation of his right to counsel.   Contrary to the defendant's argument, however, he never sought or requested an attorney prior to his statements, and there was no evidence presented that the police were aware of any prior legal representation, or that he had, in fact, retained counsel, for the unrelated traffic charges (see People v. Burdo, 91 N.Y.2d 146, 150, 667 N.Y.S.2d 970, 690 N.E.2d 854 [statements suppressed as police knew about pending charge and related representation];  People v. Rogers, 48 N.Y.2d 167, 169, 422 N.Y.S.2d 18, 397 N.E.2d 709).   Since the defendant was not questioned in violation of his Miranda rights, including his right to counsel, the hearing court properly denied suppression of the defendant's statements (see People v. Bing, 76 N.Y.2d 331, 350-351, 559 N.Y.S.2d 474, 558 N.E.2d 1011;  People v. Tyler, 43 A.D.3d 633, 635, 841 N.Y.S.2d 193;  People v. Middlebrooks, 300 A.D.2d 1142, 752 N.Y.S.2d 759;  People v. Acosta, 259 A.D.2d 422, 688 N.Y.S.2d 22;  cf. People v. Burdo, 91 N.Y.2d at 150, 667 N.Y.S.2d 970, 690 N.E.2d 854).

 Contrary to the defendant's contention, the court did not violate his right to confront a witness when it permitted a detective to testify that he told the defendant that a codefendant gave details about the killing.  “The court properly instructed the jury that the testimony was admitted for the limited purpose of explaining the detective's actions and their effect on the defendant, and not for the truth of the codefendant's statement” (People v. Ewell, 12 A.D.3d 616, 617, 786 N.Y.S.2d 545;  see Tennessee v. Street, 471 U.S. 409, 413-417, 105 S.Ct. 2078, 85 L.Ed.2d 425;  People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Marji, 43 A.D.3d 961, 962, 841 N.Y.S.2d 361;  People v. Bryant, 39 A.D.3d 768, 834 N.Y.S.2d 305).

 In addition, during the trial, the court allowed the prosecution to introduce into evidence a videotape from a video surveillance camera of the area where the shooting occurred.   Contrary to the defendant's contention, the prosecution laid a proper foundation for the admission of the tape into evidence (see People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88).   The fact that there were minor glitches in the tape goes to the weight of the evidence, not its admissibility (see People v. Gibbons, 18 A.D.3d 773, 795 N.Y.S.2d 700;  People v. Jackson, 200 A.D.2d 856, 858, 607 N.Y.S.2d 147;  People v. Apergis, 200 A.D.2d 388, 389, 608 N.Y.S.2d 77;  People v. Torres, 136 A.D.2d 664, 666, 523 N.Y.S.2d 893).

The defendant's claims of ineffective assistance of counsel are without merit, as defense counsel provided the defendant with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 711, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant's contentions in points five, six, and seven of his brief are unpreserved for appellate review because those specific contentions were not raised during the suppression hearing or the trial (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Redmond, 41 A.D.3d 514, 516, 837 N.Y.S.2d 710).   His remaining contention, in point four of his brief, concerning the propriety of the introduction of a mannequin to demonstrate the trajectories of the bullets that hit the victim's body, is without merit (see People v. Acevedo, 40 N.Y.2d 701, 389 N.Y.S.2d 811, 358 N.E.2d 495).

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