People v. Rivera — 74 A.D.3d 993

Majority

p. 993

The People of the State of New York, Respondent, v Brian Rivera, Appellant.

[904 NYS2d 449]

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 11, 2007, convicting him of murder in the second degree (felony murder), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree (felony murder) and criminal possession of a weapon in the second degree is unpreserved for appellate review, as the defendant merely made a general motion for a trial order of dismissal based upon the People’s alleged failure to establish a prima facie case both after the People rested and after the close of the evidence. The defendant did not assert any specific grounds in his motions, including whether there was insufficient evidence to corroborate the accomplice testimony in accordance with CPL 60.22 (1) (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]; People v Jackson, 70 AD3d 858 [2010], lv denied 14 NY3d 841 [2010]; People v Demolaire, 55 AD3d 621 , 622 [2008]; People v Forino, 39 AD3d 664 , 665 [2007]).

In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 , 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 , 495 [1987]). Upon reviewing the record here, we are satisfied

p. 994

that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The evidence “tend[ed] to connect the defendant to the crime[s] charged” (People v Montefusco, 44 AD3d 879 , 880 [2007]; see CPL 60.22 [1] ; People v Besser, 96 NY2d 136 , 143-144 [2001]; People v Breland, 83 NY2d 286 , 292-293 [1994]; People v Steinberg, 79 NY2d 673 , 683 [1992]; People v Delgado, 50 AD3d 915 , 917 [2008]). The corroborative evidence, consisting of, among other things, records of cell phone calls made to and by the defendant during the course of the incident (see People v Garcia, 232 AD2d 578 [1996]; People v Barbieri, 207 AD2d 554 , 555 [1994]), and the defendant’s statements to the police (see People v Booker, 53 AD3d 697 , 702 [2008]; People v Harris, 19 AD3d 871 , 873 [2005]; People v Dorsey, 3 AD3d 590 , 592 [2004]; People v .Weeks, 176 AD2d 836 , 836-837 [1991]), were independent of, and did not draw its weight and probative value from, the accomplice testimony (see People v Steinberg, 79 NY2d at 683 ; People v Delgado, 50 AD3d at 917 ).

The defendant’s contention that certain autopsy photographs of the victim were improperly admitted into evidence by the trial court is unpreserved for appellate review (see CPL 470.05 [2] ; People v Dickerson, 42 AD3d 228 , 236-237 [2007]). In any event, the photographs were properly admitted into evidence, as the “sole purpose” of their admission was not “to arouse the emotions of the jury and to prejudice the defendant” (People v Pobliner, 32 NY2d 356 , 370 [1973], cert denied 416 US 905 [1974]; see People v Wood, 79 NY2d 958 , 960 [1992]; People v Sampson, 67 AD3d 1031 , 1032 [2009]; People v Allan, 41 AD3d 727 [2007]; People v Clark, 37 AD3d 487 , 488 [2007]; People v Diaz, 35 AD3d 226 , 227 [2006]). Instead, the photographs were properly admitted to illustrate and corroborate the testimony of the medical examiner who performed the autopsy (see People v Rhodes, 49 AD3d 668 , 669-670 [2008]; People v Allan, 41 AD3d at 727-728 ; People v Clark, 37 AD3d at 488 ).

The statements made by one of the defendant’s accomplices during a telephone call to his girlfriend, while he was driving to the location where the subject robbery was to occur, were properly admitted into evidence as a present sense impression (see People v Brown, 80 NY2d 729 , 734 [1993]; People v Barnes, 64 AD3d 890 , 892 [2009]; People v Foster, 52 AD3d 957 , 961 [2008]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contention is without merit. Santucci, J.P., Angiolillo, Dickerson and Austin, JJ., concur.

Cases cited

People v. Hawkins 11 NY3d 484 N.Y. 2008-11-25 p. 993
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 993
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 p. 993
Middleton v. McNeil 542 US 946 SCOTUS 2004-06-28 p. 993
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 993
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 p. 994
People v. Montefusco 44 AD3d 879 N.Y. App. Div. 2007-10-16 at 880 p. 994
People v. Besser 96 NY2d 136 N.Y. 2001-05-01 at 143-144 p. 994
People v. Breland 83 NY2d 286 N.Y. 1994-03-22 at 292-293 p. 994
People v. Steinberg 79 NY2d 673 N.Y. 1992-06-11 at 683 p. 994
People v. Delgado 50 AD3d 915 N.Y. App. Div. 2008-04-15 at 917 p. 994
People v. Barbieri 207 AD2d 554 N.Y. App. Div. 1994-08-29 at 555 p. 994
People v. Booker 53 AD3d 697 N.Y. App. Div. 2008-07-03 at 702 p. 994
People v. Harris 19 AD3d 871 N.Y. App. Div. 2005-06-23 at 873 p. 994
People v. Dorsey 3 AD3d 590 N.Y. App. Div. 2004-01-08 at 592 p. 994
People v. Weeks 176 AD2d 836 N.Y. App. Div. 1991-10-15 at 836-837 p. 994
People v. Dickerson 42 AD3d 228 N.Y. App. Div. 2007-06-05 at 236-237 p. 994
People v. Pobliner 32 NY2d 356 N.Y. 1973-05-04 at 370 p. 994
People v. Wood 79 NY2d 958 N.Y. 1992-04-02 at 960 p. 994
People v. Sampson 67 AD3d 1031 N.Y. App. Div. 2009-11-24 at 1032 p. 994
People v. Allan 41 AD3d 727 N.Y. App. Div. 2007-06-19 p. 994
People v. Clark 37 AD3d 487 N.Y. App. Div. 2007-02-06 at 488 p. 994
People v. Diaz 35 AD3d 226 N.Y. App. Div. 2006-12-12 at 227 p. 994
People v. Rhodes 49 AD3d 668 N.Y. App. Div. 2008-03-11 at 669-670 p. 994
People v. Brown 80 NY2d 729 N.Y. 1993-02-18 at 734 p. 994
People v. Barnes 64 AD3d 890 N.Y. App. Div. 2009-07-09 at 892 p. 994
People v. Foster 52 AD3d 957 N.Y. App. Div. 2008-06-12 at 961 p. 994
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 p. 994