People v Conde (Daniel)
Annotate this CaseDecided on February 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, J.P., TOLBERT and GARGUILO, JJ.
2010-2300 N CR
The People of the State of New York, Respondent,
against
Daniel Conde, Appellant.
Appeal from a judgment of the District Court of Nassau County, First District (Valerie Alexander, J.), rendered July 30, 2010. The judgment convicted defendant, upon a jury verdict, of public lewdness. The appeal from the judgment of conviction brings up for review the denial, after a hearing (Erica L. Prager, J.), of the branches of defendant's omnibus motion seeking to suppress a statement he made to law enforcement officials, and identification testimony.
ORDERED that the judgment of conviction is affirmed.
At approximately 9:30 a.m. on a Saturday morning in February 2008, the complainant, who had just completed a class at a health club, noticed a dented, 1994 red Volvo station wagon being driven in the parking lot. The complainant got into her car, exited the lot, and turned right, traveling southbound in the right lane of Glen Cove Road in Nassau County. She testified that she had stopped at the first traffic light after leaving the parking lot. While she was stopped at the light, the red Volvo, driven by defendant, stopped next to her in the left lane. The complainant turned her head to the left and saw defendant move his head downward, whereupon she observed defendant's erect penis. Defendant was ultimately arrested and convicted of public lewdness (Penal Law § 245.00).
Defendant's claim that the accusatory instrument was jurisdictionally defective is without merit. Penal Law § 245.00 provides that a person is guilty of public lewdness when he or she "intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed." In the case at bar, the accusatory instrument charged both subdivisions (a) and (b) of Penal Law § 245.00. We find that the accusatory instrument was not defective because, under the facts and circumstances of this case, the two subdivisions were alleged in the disjunctive (see Schad v Arizona, 501 US 624, 631 [1991]; People v Mateo, 2 NY3d 383, 406-408 [2004]; People v Conroy, 53 AD3d 438, 442 [2008]; People v Ponnapula, 229 AD2d 257, 273 [1997]). As defendant's car was stopped at a traffic light on a four-lane road in Nassau County at approximately 9:30 a.m. on a Saturday morning in February, it was not certain whether the evidence at trial would establish that the interior of defendant's car was a "public place" or "private premises" (see People v McNamara, 78 NY2d 626, 633 [1991]; compare People v Jackson, 18 NY3d 738, 742 [2012]).
We further find that the allegations in the factual part of the accusatory instrument were [*2]jurisdictionally sufficient (see People v Guaman, 22 NY3d 678, 681-682 [2014]; People v Kalin, 12 NY3d 225, 229-230 [2009]).
The District Court correctly declined to suppress defendant's written statement provided to the police (see People v Mitchell, 94 AD3d 1252, 1253 [2012]; People v Drennan, 81 AD3d 1278, 1279 [2011]; People v Pegues, 59 AD3d 570, 571 [2009]; People v Bongarzone-Suarrcy, 13 AD3d 385, 386-387 [2004], affd 6 NY3d 787 [2006]; People v Jamison, 307 AD2d 368, 368-369 [2003]). Defendant was not in custody when a detective questioned him during a telephone conversation, and at the precinct, before he was provided with Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]). Defendant voluntarily drove to the precinct. He was not handcuffed. The detective's questions were investigatory in nature. Consequently, a reasonable person innocent of any wrongdoing would have believed that he or she was free to leave the presence of the police (see People v Yukl, 25 NY2d 585, 589 [1969]; People v Borukhova, 89 AD3d 194, 212-213 [2011]). The fact that the detective testified that he had previously decided to arrest defendant is not controlling, as this decision was not communicated to defendant (see People v Ealy, 20 AD3d 933 [2005]; People v Fenti, 175 AD2d 598, 600 [1991]).
Moreover, the District Court correctly declined to suppress the complainant's identification testimony. The fact that the detective told the complainant that the suspect's photograph was contained in the photographic array did not "automatically contaminate" the identification (People v Rodriguez, 64 NY2d 738, 740-741 [1984]; see People v Lawal, 73 AD3d 1287, 1288 [2010]; People v Warren, 50 AD3d 706, 707 [2008]; People v Srugatch, 32 Misc 3d 136[A], 2011 NY Slip Op 51469[U] [App Term, 9th & 10th Jud Dists 2011]).
Defendant contends that reversal is required because the complainant's testimony regarding the location of the incident was at variance with the location alleged in the accusatory instrument, and the trial court improperly denied his motions to dismiss the accusatory instrument and his motion to set aside the verdict pursuant to CPL 330.30. However, the complainant consistently testified that the incident occurred at the first traffic light after she made a right turn out of the parking lot. Furthermore, defendant's claim is based on a false premise that the traffic light where the complainant testified that the incident occurred was located one-half mile from where the accusatory instrument alleged it was. This contention was supported only by the arguments of defendant's trial counsel. There was no evidence adduced at the trial that the traffic light where the incident occurred was one-half mile away from where the accusatory instrument alleged it occurred. Nor did counsel present the trial court with a map and request that it take judicial notice of the distance between the locations.
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 defendant's guilt, beyond a reasonable doubt, of public lewdness. Moreover, in exercising its factual review power (see CPL 470.15 [5], People v Danielson, 9 NY3d 342, 348-349 [2007]), this court accords great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d at 410; People v Bleakley, 69 NY2d 490, 495 [1987]). This court must weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]), determine whether an acquittal would not have been unreasonable based upon the evidence presented, and whether the finder of fact failed to accord the evidence the weight it should have been accorded (see People v Danielson, 9 NY3d at 348). In this case, an acquittal would have been unreasonable, and the verdict of guilt was not against the weight of the evidence.
Defendant's remaining contentions are without merit.
Accordingly, the judgment of conviction is affirmed.
Marano, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: February 17, 2015
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