The People, etc., respondent, v. Juan R. Bernardez, appellant.

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

The People, etc., respondent, v. Juan R. Bernardez, appellant.

2008-11103 (Ind.No. 07-00545)

Decided: May 25, 2010

JOSEPH COVELLO, J.P. THOMAS A. DICKERSON RANDALL T. ENG LEONARD B. AUSTIN, JJ. Gerald Zuckerman, Ossining, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

Submitted-April 26, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered November 5, 2008, convicting him of murder in the second degree (three counts), kidnapping in the first degree, robbery in the first degree, and burglary in the first 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 statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.   The hearing court properly found that the defendant did not make those statements during a custodial interrogation, and that they were not the product of an unlawful arrest (see People v. Yukl, 25 N.Y.2d 585, 588-592, cert denied 400 U.S. 851;  People v. Ellerbe, 265 A.D.2d 569, 570;  People v. Delfino, 234 A.D.2d 382, 383-383).   Moreover, the hearing court properly found that the defendant made those statements after knowingly, voluntarily and intelligently waiving his Miranda rights (see Miranda v. Arizona, 384 U.S. 436), and that those statements were not the product of coercion (see People v. Miles, 276 A.D.2d 566, 566-567).

There is no merit to the defendant's contention that the trial court improperly permitted an expert in forensic psychiatry who testified during the People's rebuttal case to refer to the defendant's criminal history.   The probative value of the testimony, which tended to disprove the defendant's claim concerning his mental state, outweighed its potential for prejudice to the defendant (see People v. Santarelli, 49 N.Y.2d 241, 248-249;  People v. Ryklin, 150 A.D.2d 509, 510-511).   Furthermore, the trial court gave appropriate limiting instructions to the jury as to the limited purpose for which the testimony was received (see People v. Ryklin, 150 A.D.2d at 511).

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

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

COVELLO, J.P., DICKERSON, ENG and AUSTIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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