People v. Mack

Appellate Division of the Supreme Court of New York

People v. Mack

4 A.D.3d 126, 771 N.Y.S.2d 343, 2004 N.Y. App. Div. LEXIS 1101

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 5, 2004

StatusPublished

This text of 4 A.D.3d 126 (People v. Mack) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mack, 4 A.D.3d 126, 771 N.Y.S.2d 343, 2004 N.Y. App. Div. LEXIS 1101 (N.Y. Ct. App. 2004).

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Opinion

Judgment, Supreme Court, New York County (Daniel FitzGerald, J., at hearing; Micki Scherer, J., at jury trial and sentence), rendered August 7, 2000, convicting defendant of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of nine years and seven years, respectively, and order, same court (Micki Scherer, J.), entered on or about October 31, 2002, which denied defendant’s motion to vacate the judgment pursuant to GPL 440.10, unanimously affirmed.

The court properly denied defendant’s motion to suppress statements. The hearing record establishes that at the time defendant made his initial statement to a detective, prior to any Miranda warnings, defendant was not in custody (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]), and further establishes that this statement was voluntary and that it was not the product of an earlier unlawful detention (see People v Rogers, 52 NY2d 527, 532-535 [1981], cert denied 454 US 898 [1981]). In any event, defendant’s subsequent statements to another detective, made after Miranda warnings, were voluntary and were sufficiently attenuated from both the prior statement and from the earlier Fourth Amendment violation to be admissible.

The court properly denied defendant’s motion to vacate the judgment. The trial record establishes that defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). While defendant asserts that counsel should have requested various jury instructions, these instructions were not critical to defendant’s defense and their absence did not deprive him of a fair trial (see People v Hobot, 84 NY2d 1021, 1024 [1995]).

We perceive no basis for reducing the sentence.

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to [127]*127review these claims, we would reject them. Concur—Mazzarelli, J.P., Saxe, Ellerin and Williams, JJ.

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Judgment, Supreme Court, New York County (Daniel FitzGerald, J., at hearing; Micki Scherer, J., at jury trial and sentence), rendered August 7, 2000, convicting defendant of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of nine years and seven years, respectively, and order, same court (Micki Scherer, J.), entered on or about October 31, 2002, which denied defendant’s motion to vacate the judgment pursuant to GPL 440.10, unanimously affirmed.

The court properly denied defendant’s motion to suppress statements. The hearing record establishes that at the time defendant made his initial statement to a detective, prior to any Miranda warnings, defendant was not in custody (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]), and further establishes that this statement was voluntary and that it was not the product of an earlier unlawful detention (see People v Rogers, 52 NY2d 527, 532-535 [1981], cert denied 454 US 898 [1981]). In any event, defendant’s subsequent statements to another detective, made after Miranda warnings, were voluntary and were sufficiently attenuated from both the prior statement and from the earlier Fourth Amendment violation to be admissible.

The court properly denied defendant’s motion to vacate the judgment. The trial record establishes that defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). While defendant asserts that counsel should have requested various jury instructions, these instructions were not critical to defendant’s defense and their absence did not deprive him of a fair trial (see People v Hobot, 84 NY2d 1021, 1024 [1995]).

We perceive no basis for reducing the sentence.

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to [127]*127review these claims, we would reject them. Concur—Mazzarelli, J.P., Saxe, Ellerin and Williams, JJ.

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4 A.D.3d 126, 771 N.Y.S.2d 343, 2004 N.Y. App. Div. LEXIS 1101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mack-nyappdiv-2004.

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