People v. McCawPeople v. McCaw
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered April 10, 2013, convicting him of criminal possession of a weapon in the second degree and criminal possession of marijuana in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a heаring, of that branch of the defendant‘s omnibus motion which was to suppress recorded statements he made to a codefendant.
Ordered that the judgment is affirmed.
On November 2, 2011, Hopeton Cаmpbell was driving a car owned by the defendant, Tesfa McCaw, while the defendant was seated in the passenger seat. The car was traveling 20 miles per hour over the posted speed limit. Upon stopping the car, a Westchester County Police Officer observed Campbell and the defendant switch seats. The dеfendant, who exited the driver‘s seat, explained to the officer that he switched seats with Campbell because Campbell did not have a valid driver license. When the officer approached the car and spoke to Campbell, the officer, based upon his training and experience, detected a strong odor of marijuana emanating from the inside the vehicle. Campbell informed the officer that he had smoked marijuana earlier, and that there was marijuana inside the
The defendant was jointly tried with Campbell. The recording of the defendant‘s and Campbell‘s conversation in the patrol car was admitted into evidence at trial, and a transcript thereof was approved by the Supreme Court to be used as an aid to the jury. The defendant was convicted of criminаl possession of a weapon in the second degree and criminal possession of marijuana in the third degree. The defendant appeals.
The defendant contends that the recording of the patrol car conversation should have been suppressed because it violated his Miranda rights. Miranda v Arizona (384 US 436 [1966]) requires thаt before custodial interrogation by a law enforcement official can begin, a suspect must be advised concerning his or her right to remain silent and of his or her right to counsel, and that, “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he [or she] wishes to remain silent, the interrogation must cease” (id. at 473-474; see People v Ferro, 63 NY2d 316, 322 [1984]). The subject recording was not the product of a law enforcement interrogation or instigated by law enforcement conduct, but instead, was a recording between codefendants outside the presence of the officer who stopped them. Under these circumstances, the defendant‘s Miranda rights did not attach, and consequently, the recording did not constitute a Miranda violation.
The defendant‘s contention that the subject recording constituted illegal warrantless eavesdropping is without merit because he and Campbell had no reasonable expectation of privacy while inside the patrol car (see People v McFarland, 106 AD3d 1129 [2013]; see also United States v Webster, 775 F3d 897 [7th Cir 2015]; United States v Clark, 22 F3d 799 [8th Cir 1994]; United States v McKinnon, 985 F2d 525 [11th Cir 1993]).
The defendant also challenges the admission into evidence of the subject recording on the ground that it was insufficiently audible. Contrary to his contention, thе Supreme Court, upon holding an audibility hearing, providently exercised its discretion in admitting the recording into evidence. “An audiotape recording should be excluded from evidence if it is so inaudible and indistinct that a jury must speculate as to its contents” (People v Bailey, 12 AD3d 377, 377 [2004] [internal quotation marks omitted]; see People v Harrell, 187 AD2d 453 [1992]; People v Morgan, 175 AD2d 930, 932 [1991]; People v Papa, 168 AD2d 692 [1990]). Even where tape recordings are inaudible in part, so long as the conversations can be generally understood by the jury, such infirmities go to the weight of the evidence and not to its admissibility (see People v Lewis, 25 AD3d 824 [2006]). While portions of the subject recоrding were inaudible, there was no real danger that the factfinder would be left to speculate as to what transpired, especially where, as here, thе defendant and Campbell are clearly heard expressing their concern that the officer would find the gun in the subject vehicle. Moreover, the court рrovidently exercised its discretion in allowing the jury to use a transcript as an aid in listening to the subject recording at trial (see People v Redmond, 41 AD3d 514, 515 [2007]; People v Wilson, 207 AD2d 463, 464 [1994]).
The defendant‘s contention that the officer who stopped his vehicle lacked probable cause to search it without a warrant is not preserved for appellate review (see
The defendant‘s contention that the Supreme Court should have tried him separately from Campbell is not preserved for appellate review (see
Contrary to the defendant‘s contention, defеnse counsel provided meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; People v Dolan, 2 AD3d 745 [2003]; People v Groonell, 256 AD2d 356, 357 [1998]).
The defendant‘s challenge to the legal sufficiency of the evidence with respect to the charge of criminal possession of a weapon in the second degree is not preserved for appellate review (see
Contrary to the defendant‘s contention, the Supreme Court‘s jury charge on the automobile presumption adequately advised the jury that it could ignore the presumption (see People v Waters, 30 AD3d 681 [2006]; People v Martinez, 257 AD2d 479 [1999]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant‘s remaining contention, raised in point II of his main brief, is without merit.
Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.