People v Johnson

People v Johnson 2011 NY Slip Op 08167 Decided on November 9, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 9, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
MARK C. DILLON
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2010-01662
(Ind. No. 300/09)

[*1]The People of the State of New York, respondent,

v

Steven Johnson, appellant.




Leon H. Tracy, Jericho, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J.
Smiley, Anthony J. Viola, Andre K.
Cizmarik, and Zachary W. Silverman
of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered January 27, 2010, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions, of suppression of his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

The hearing court properly found that the defendant's statements to law enforcement officials followed a lawful arrest based upon probable cause (see People v Ramirez-Portoreal, 88 NY2d 99, 113-114; People v Jackson, 65 AD3d 1164). Contrary to the defendant's contention, nothing in the photographic array which led to the complainant's identification of the defendant impermissibly drew the viewer's attention to his photograph (see People v Parham, 74 AD3d 1237, 1238; People v Avent, 29 AD3d 601; People v Price, 256 AD2d 596, 597).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish his guilt of burglary in the second degree beyond a reasonable doubt (see People v Hammon, 47 AD3d 644, 644-645; People v Washington, 26 AD3d 400; People v Murray, 168 AD2d 573, 573-574). 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), we nevertheless accord great deference to the jury's [*2]opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

Contrary to the defendant's contention, we also find that counsel provided the defendant with meaningful representation at the pretrial hearing and at sentencing (see People v Baldi, 54 NY2d 137, 146-147; People v Larkins, 10 AD3d 694).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
MASTRO, J.P., DILLON, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court