People v. MarinoPeople v. Marino
Ordered that the judgment under indictment No. 3213/11 is modified, on the law, by vacating the convictions of grand larceny in the third degree and criminal possession of stolen property in the third degree and vacating the sentences imposed thereon; as so modified, the judgment under indictment No. 3213/11 is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
We agree with the defendant’s contention that the hearing court erred in denying that branch of his omnibus motion which was to suppress his videotaped statement to law enforcement officials. The preamble read to the defendant by the detective investigator from the district attorney’s office who conducted the pre-arraignment interview, prior to advising the defendant of his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]), violated the principles enunciated in People v Dunbar (24 NY3d 304, 316 [2014]), and rendered the subsequent Miranda warnings “inadequate and ineffective” in advising the defendant of his rights (id. at 316; see People v Rivera, 128 AD3d 1100, 1101 [2015]). In that statement, the defendant admitted his guilt of the acts underlying the charges of criminal mischief in the third degree and attempted grand larceny in the fourth degree under indictment No. 3143/11, with respect to his alleged attempt to steal a vehicle on August 23, 2011. The error in admitting the videotaped statement is not harmless and requires reversal if, “however overwhelming may be the quantum and nature of other proof, . . . there is a reasonable possibility that the [error] might have contributed to the conviction” (People v Crimmins, 36 NY2d 230, 240-241 [1975] [internal quotation marks omitted]).
Here, although the other evidence of the defendant’s guilt was overwhelming, under the circumstances of this case, there is a reasonable possibility that the error in admitting his videotaped statements about the acts underlying the charges
However, with respect to the charges of criminal possession of stolen property in the third degree and unauthorized use of a vehicle in the third degree under indictment No. 3143/11, relating to the defendant’s possession of a stolen vehicle on August 10, 2011, there is no reasonable possibility that the admission of the videotaped statement may have contributed to the defendant’s convictions on those charges. The defendant was apprehended by the police when he was in possession of that vehicle several days after it was stolen. The vehicle was visibly damaged, since its mirrors had been removed. Further, the defendant spontaneously admitted to the police that his use of the vehicle was unauthorized. Similarly, there is no reasonable possibility that the admission of the videotaped statement may have contributed to the defendant’s convictions of unauthorized use of a vehicle in the third degree and endangering the welfare of a child (two counts) under indictment No. 3213/11, relating to his taking of a vehicle on August 16, 2011, with two children inside. In a written statement to the police, the defendant admitted that he took the vehicle, and his presence in the vehicle was established by DNA evidence.
The defendant’s challenges to the proof of guilt are unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant’s guilt of all charges of which he was convicted. Moreover, upon our independent review pursuant to
The sentences imposed for the crimes of criminal possession of stolen property in the third degree and unauthorized use of a vehicle in the third degree under indictment No. 3143/11, and unauthorized use of a vehicle in the third degree and
Leventhal, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.