People v. Carvalho

60 A.D.3d 1394, 876 N.Y.S.2d 269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2009
• Status: Published

Opinion

Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 27, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the third degree and grand larceny in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the third degree (Penal Law § 160.05) and grand larceny in the third degree (§ 155.35). Contrary to the contention of defendant, County Court properly refused to suppress tape-recorded statements that he made to his ex-wife. Although the People may not elicit incriminating statements from a defendant who is represented by counsel, “statements induced by nongovernmental entities, acting privately, do not fall within the ambit of this exclusionary rule” (People v Velasquez, 68 NY2d 533, 537 [1986]). Here, according to the evidence at the suppression hearing, defendant’s ex-wife was not acting as an agent of the police, and her statements were not otherwise induced by governmental entities (see id.; People v Jean, 13 AD3d 466, 467 [2004], lv denied 5 NY3d 764, 807 [2005]; People v Shabani, 203 AD2d 142 [1994], lv denied 84 NY2d 832 [1994]).

We further conclude that the court properly allowed a prosecution witness to testify with respect to her identification of defendant from a photo array. “Defendant opened the door to the testimony of that witness” by attacking the validity of the photo array during his opening statement (People v Williams, 273 AD2d 824, 826 [2000], lv denied 95 NY2d 893 [2000]). Furthermore, defendant was not denied effective assistance of counsel based on defense counsel’s strategic attempt to discredit the pretrial identification of the witness by using the photo array (see People v Ofield, 280 AD2d 978 [2001], lv denied 96 NY2d 832 [2001]).

Contrary to the further contention of defendant, he has “no constitutional right to a jury trial to establish the facts of his prior felony convictions” (People v Rosen, 96 NY2d 329, 335 [2001]; see People v Rivera, 5 NY3d 61, 67 [2005], cert denied 546 US 984 [2005]). Furthermore, we conclude that the court did not abuse its discretion in sentencing defendant as a persistent felony offender based upon defendant’s criminal history (see People v O’Connor, 6 AD3d 738, 740-741 [2004], lv denied 3 NY3d 645 [2004]). Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.