People v. Brink

Jul 7, 2006
Versions:31 A.D.3d 1139
818 N.Y.S.2d 374

Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered April 20, 2004. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, robbery in the second degree, burglary in the first degree, unlawful imprisonment in the second degree, criminal possession of a weapon in the second degree, and petit larceny.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, robbery in the first degree (Penal Law § 160.15 [2]), robbery in the second degree (§ 160.10 [1]), and burglary in the first degree (§ 140.30 [2]). We reject the contention of defendant that Crawford v Washington (541 US 36 [2004]) applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at that hearing. As the Supreme Court has written, “[t]he right [of] confrontation is basically a trial right” (Barber v Page, 390 US 719, 725 [1968]; see People v Robinson, 9 Misc 3d 676, 678-680 [2005]; see also United States v Thompson, 2005 WL 3050634, *4-6, 2005 US Dist LEXIS 27763, *12-20 [ED Mo, Nov. 14, 2005]; People v Felder, 129 P3d 1072, 1073-1074 [Colo App 2005]; Vanmeter v State, 165 SW3d 68, 74-75 [Tex App 2005]). Indeed, “the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial” (United States v Raddatz, 447 US 667, 679 [1980], reh denied 448 US 916 [1980]).

Contrary to defendant‘s further contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We further reject defendant‘s contention that reversal is required based on prosecutorial misconduct on summation. Reversal based on prosecutorial misconduct is “mandated only when the conduct [complained of] has caused such substantial prejudice to the defendant that he has been denied due process of law” (People v Rubin, 101 AD2d 71, 77 [1984], lv denied 63 NY2d 711 [1984], quoting People v Mott, 94 AD2d 415, 419 [1983]), and there is no such substantial prejudice in this case. Rather, the record establishes that the prosecutor‘s comments on summation were a fair response to defense counsel‘s summation (see generally People v Halm, 81 NY2d 819, 821 [1993]; People v Beggs, 19 AD3d 1150 [2005], lv denied 5 NY3d 803 [2005]).

Also contrary to defendant‘s contention, County Court properly allowed the People to amend the indictment to correct a typographical error. The amendment did not change the theory of the prosecution, nor did it “otherwise tend to prejudice the defendant on the merits” (CPL 200.70 [1]). In addition, the court‘s Sandoval ruling, pursuant to which the court allowed inquiry into defendant‘s conviction of rape in the second degree, does not constitute an abuse of discretion (see generally People v Hayes, 97 NY2d 203, 207-208 [2002]). That conviction demonstrated the willingness of defendant to put his own interests before those of society and was therefore relevant to “the question of his veracity” (People v Bennette, 56 NY2d 142, 148 [1982]). We reject the further contention of defendant that he received ineffective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Here, defendant failed to “demonstrate the absence of strategic or other legitimate explanations” for [defense] counsel‘s alleged shortcomings” (Benevento, 91 NY2d at 712; see People v Rivera, 71 NY2d 705, 709 [1988]). The sentence is not unduly harsh or severe.

We have considered defendant‘s remaining contentions and conclude that they are without merit. Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Green and Hayes, JJ.