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People v. Tinch

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 20, 2010

THE PEOPLE, ETC., RESPONDENT,
v.
MELVIN TINCH, APPELLANT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered January 22, 2007, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

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.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN and LEONARD B. AUSTIN, JJ.

(Ind. No. 792/06)

DECISION & ORDER

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, a review of the totality of the circumstances (see People v Mateo, 2 NY3d 383, 413, cert denied 542 US 946), demonstrates that his oral, written, and videotaped statements to the police were voluntarily made (see CPL 60.45[1]). Accordingly, that branch of the defendant's omnibus motion which was to suppress his oral, written, and videotaped statements to police was properly denied (see People v Mora, 57 AD3d 571, 571-572).

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The trial court properly denied the defendant's request to charge manslaughter in the second degree as a lesser-included offense of depraved indifference murder. There was no reasonable view of the evidence which would support a finding that the defendant committed the lesser offense but not the greater (see CPL 300.50[1]; People v Webb, 31 AD3d 796, 797; People v Platt, 299 AD2d 496; People v Vargas, 212 AD2d 553; People v Murray, 208 AD2d 655).

The defendant's claim of ineffective assistance of counsel is without merit, as the record shows that defense counsel provided meaningful representation to the defendant at all stages of the proceedings (see People v Caban, 5 NY3d 143, 152; People v Benevento, 91 NY2d 708, 712).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

SKELOS, J.P., COVELLO, BALKIN and AUSTIN, JJ., concur.

20100420

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