PEOPLE v. BLAKE

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

The PEOPLE, etc., Respondent, v. Lance BLAKE, Appellant.

Decided: September 29, 1997

Before MILLER, J.P., and FLORIO, McGINITY and LUCIANO, JJ. Matthew Muraskin, Hempstead (Kent V. Moston, of counsel), for appellant. Denis Dillon, District Attorney, Mineola (Bruce E. Whitney and Lawrence J. Schwarz, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered June 5, 1995, convicting him of robbery 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 motion which was to suppress statements made by him to the police.

ORDERED that the judgment is affirmed.

 There is no merit to the defendant's contention that his statements to the police were involuntary.   It is undisputed that the defendant was advised of his Miranda rights, understood them, and voluntarily waived them prior to making the incriminating statements to the police.   It is also undisputed that the defendant was not threatened, abused, or otherwise mistreated by the police (see, People v. Thomas, 223 A.D.2d 612, 636 N.Y.S.2d 830).   Further, since the defendant was over 16 years old at the time of the questioning, the statutory notification requirements were not applicable (see, People v. Crosby, 105 A.D.2d 844, 481 N.Y.S.2d 764).

 We agree with the defendant's contention that the trial court erred in allowing two law enforcement officials to testify as to the specific description of the defendant and that the defendant matched this description.   This testimony was impermissible hearsay (see, People v. Huertas, 75 N.Y.2d 487, 554 N.Y.S.2d 444, 553 N.E.2d 992).   However, in view of the overwhelming evidence of the defendant's guilt, which included the compelling identification evidence of the complainant and the defendant's admissions, the court's error in admitting the hearsay testimony was harmless (see, People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478).   There was “no reasonable danger that the jury may have used the testimony as a substitute for the identification made by [the] complainant” (People v. Williams, 180 A.D.2d 423, 424, 579 N.Y.S.2d 371).

 The denial of youthful offender status was not an improvident exercise of the sentencing court's discretion (see, People v. Ciminera, 202 A.D.2d 684, 612 N.Y.S.2d 874) and 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 either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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