PEOPLE v. SAMPSON

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

The PEOPLE, etc., respondent, v. Sydney SAMPSON, appellant.

Decided: November 24, 2009

STEVEN W. FISHER, J.P., JOSEPH COVELLO, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Karen Wigle Weiss of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered December 5, 2006, convicting him of murder in the second 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 (Eng, J.), 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 defendant's contention, raised in his supplemental pro se brief, that a statement elicited from him by police detectives should have been suppressed because he had not received Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct. 1602, 16 L.Ed.2d 694) while he was in custody, is without merit.   We agree with the finding of the hearing court, which is entitled to great deference, that the defendant was not in custody when he gave his exculpatory statement to the detectives (see People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89;  People v. Brown, 44 A.D.3d 966, 843 N.Y.S.2d 688;  People v. Dillhunt, 41 A.D.3d 216, 216-217, 839 N.Y.S.2d 18).

The defendant's contention that reversal of his conviction is required based on the prosecutor's alleged improper comments in his opening statement is unpreserved for appellate review (see CPL 470.05[2];  People v. Stiff, 60 A.D.3d 1094, 875 N.Y.S.2d 795;  People v. Miller, 59 A.D.3d 463, 464, 873 N.Y.S.2d 154) and, in any event, is without merit (see People v. Sayers, 64 A.D.3d 728, 732-733, 883 N.Y.S.2d 142;  People v. Stiff, 60 A.D.3d at 1094, 875 N.Y.S.2d 795).

 The defendant's further contention, raised in his supplemental pro se brief, that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review, as his defense counsel merely made a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case (see CPL 470.05 [2];  People v. Hawkins, 11 N.Y.3d 484, 491-492, 872 N.Y.S.2d 395, 900 N.E.2d 946).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish his guilt beyond a reasonable doubt.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant next challenges the photographic evidence admitted during the trial in chief.   It is settled law that photographic evidence “should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110;  see People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278).   The admissibility of photographs, even if gruesome in nature, is a matter committed to the sound discretion of the trial court, if it tends “to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered” (People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  see People v. Stevens, 76 N.Y.2d at 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278;  People v. Pobliner, 32 N.Y.2d at 369, 345 N.Y.S.2d 482, 298 N.E.2d 637;  People v. Dickerson, 42 A.D.3d 228, 237, 837 N.Y.S.2d 101;  People v. Diaz, 35 A.D.3d 226, 227, 825 N.Y.S.2d 51).   The photographs in this case were not offered for the sole purpose of arousing the emotions of the jurors.

 The defendant contends that he was deprived of a fair trial by certain remarks made by the prosecutor during his summation, inter alia, appealing for sympathy for the deceased (see People v. Brown, 26 A.D.3d 392, 393, 812 N.Y.S.2d 561;  People v. Bhupsingh, 297 A.D.2d 386, 388, 746 N.Y.S.2d 490;  People v. Walters, 251 A.D.2d 433, 434, 674 N.Y.S.2d 114), and attempting to shift the burden of proof (see People v. Jamal, 307 A.D.2d 267, 268, 761 N.Y.S.2d 874;  cf. People v. Edwards, 38 A.D.3d 1133, 1134, 833 N.Y.S.2d 280;  People v. Warren, 27 A.D.3d 496, 498, 812 N.Y.S.2d 569).   However, any errors with respect to the prosecutor's comments were harmless, as there was overwhelming proof of the defendant's guilt, and there was no significant probability that the remarks contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Miller, 59 A.D.3d 463, 464, 873 N.Y.S.2d 154;  People v. Lacewell, 44 A.D.3d 876, 877, 842 N.Y.S.2d 920).

The defendant was afforded the effective assistance of trial counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Stultz, 2 N.Y.3d 277, 283-284, 778 N.Y.S.2d 431, 810 N.E.2d 883;  People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Holmes, 47 A.D.3d 946, 947, 850 N.Y.S.2d 571).

 The defendant's contentions regarding the admission of a photocopy of a photograph and the alleged failure to provide Rosario material (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64), raised for the first time on appeal in his supplemental pro se brief, are based on matter dehors the record, and cannot be reviewed on this direct appeal from the judgment (see People v. Jackson, 41 A.D.3d 498, 500, 838 N.Y.S.2d 108).

The defendant's contentions, raised in his supplemental pro se brief, concerning the admission of evidence that he possessed guns prior to the murder, the alleged insufficiency of the evidence presented to the grand jury, and that the testimony of his wife was subject to the marital privilege, are without merit.

The defendant's remaining contentions, raised in his supplemental pro se brief, are unpreserved for appellate review and, in any event, are without merit.

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