People v Johnson

People v Johnson 2008 NY Slip Op 08417 [56 AD3d 268] November 6, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
v
Allen Johnson, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Mugambi Jouet of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered October 31, 2006, convicting defendant, after a jury trial, of criminal sexual act in the first degree, attempted criminal sexual act in the first degree, attempted rape in the first degree, burglary in the first degree, criminal possession of a weapon in the second and third degrees, and three counts of sexual abuse in the first degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 115 years to life, unanimously affirmed.

The court properly denied defendant's motion to suppress his statements to the police. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). Defendant's statements were clearly spontaneous and not the product of police interrogation (see People v Lawrence, 25 AD3d 498 [2006], lv denied 6 NY3d 835 [2006]). The detectives' words and actions relating to the recovery and securing of a loaded revolver were incidental to the arrest and were neither intended nor reasonably likely to elicit an incriminating statement (id.; see also People v Arriaga, 309 AD2d 544 [2003], lv denied 1 NY3d 624 [2004]; People v Smith, 298 AD2d 182 [2002], lv denied 99 NY2d 585 [2003]).

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]). The court only permitted inquiry as to a limited portion of defendant's extensive record, and the convictions at issue were neither stale [*2]nor unduly prejudicial. To the extent that defendant is raising a constitutional claim relating to the Sandoval issue, such claim is both unpreserved and without merit. Concur—Andrias, J.P., Saxe, Gonzalez, Catterson and Acosta, JJ.