C. Mitchell, Riverhead, NY (Felice B. Milani of counsel), for
J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of
counsel), for respondent.
C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court, Suffolk
County (Camacho, J.), rendered June 25, 2015, convicting him
of aggravated vehicular homicide, manslaughter in the second
degree, and vehicular manslaughter in the second degree, upon
a jury verdict, and imposing sentence. The appeal brings up
for review the denial, after a hearing, of those branches of
the defendant's omnibus motion which were to suppress
physical evidence and his statement to law enforcement
that the judgment is affirmed.
to the defendant's contention, the County Court properly
denied suppression of the statement he made to the police
after he was advised of his Miranda rights (see
Miranda v Arizona, 384 U.S. 436; People v
Glover, 87 N.Y.2d 838, 839; People v Carrino,
134 A.D.3d 946, 948; People v Powell, 304 A.D.2d
410, 410-411). After he was advised of his rights, the
defendant was asked if he was willing to answer questions. He
said "yes, " but wrote "no" on his
written waiver. This was not an unequivocal invocation of his
right to counsel, and it was proper for the detective to
clarify the defendant's answer (see Davis v United
States, 512 U.S. 452, 461; People v Powell, 304
A.D.2d at 410-411; cf. People v Harris, 93 A.D.3d
58, 68, affd 20 N.Y.3d 912), to ensure that the
defendant had not invoked his right to counsel, and did not
wish to (see People v Powell, 304 A.D.2d at
defendant's challenge to the legal sufficiency of the
evidence is unpreserved for appellate review (see
CPL 470.05; People v Hawkins, 11 N.Y.3d 484,
492). In any event, viewing the evidence in the light most
favorable to the People (see People v Contes, 60
N.Y.2d 620, 621), we find that it was legally sufficient to
establish the defendant's guilt of aggravated vehicular
homicide (Penal Law § 125.14) and manslaughter in the
second degree (Penal Law § 125.15) beyond a
reasonable doubt (see People v Hale, 147 A.D.3d 975;
People v Gallo, 133 A.D.3d 1088, 1089-1090).
Moreover, in fulfilling our responsibility to conduct an
independent review of the weight of the evidence
(see CPL 470.15; People v Danielson, 9
N.Y.3d 342, 348-349), we nevertheless accord great deference
to the jury's opportunity to view the witnesses, hear the
testimony, and observe demeanor (see People v Mateo,
2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490,
495). Upon reviewing the record here, we are satisfied that
the verdict of guilt as to those crimes was not against the
weight of the evidence (see People v Romero, 7
N.Y.3d 633, 643-644).
the record as a whole, the defendant was not deprived of the
effective assistance of counsel, as defense counsel provided
meaningful representation (see People v Benevento,
91 N.Y.2d 708, 712; People v Baldi, 54 N.Y.2d 137,
147; cf. People v Gordian, 99 A.D.3d 538, 538).
"[A] showing that counsel failed to make a particular
pretrial motion generally does not, by itself, establish
ineffective assistance of counsel" (People v
Rivera, 71 N.Y.2d 705, 709; see People v
Vonneida, 130 A.D.3d 1322, 1322-1323; People v
Coats, 195 A.D.2d 519, 519). Even if there was a
colorable basis upon which a motion to suppress evidence of
the defendant's refusal to submit to a chemical test
could have been made, the defendant was not deprived of the
effective assistance of counsel since the motion had little
or no chance of success (see People v Carver, 27
N.Y.3d 418, 420-421).
sentence imposed was not excessive (see People v
Suitte, 90 A.D.2d 80).
defendant's remaining contentions are without merit.
DILLON, J.P., AUSTIN, HINDS-RADIX and ...