People v. Scippio ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 3, 2016 106275
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROY SCIPPIO,
Appellant.
________________________________
Calendar Date: September 13, 2016
Before: McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.
__________
Neal D. Futerfas, White Plains, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
__________
Clark, J.
Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered August 19, 2013, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the second degree and criminal possession of a weapon
in the third degree.
In the early morning hours of July 16, 2011, Leon Peters
(hereinafter the victim) was shot in the arm as he was walking
towards Kennedy Fried Chicken in the City of Kingston, Ulster
County. The ensuing investigation led to defendant being
identified as a person of interest and, upon being questioned by
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the police, defendant confessed to having shot the victim on the
night in question. Defendant was thereafter indicted on the
charges of criminal possession of a weapon in the second degree,
assault in the second degree and criminal possession of a weapon
in the third degree. Defendant unsuccessfully moved to suppress
his confession and, following a jury trial, he was convicted of
criminal possession of a weapon in the second degree and criminal
possession of a weapon in the third degree, but acquitted on the
charge of assault in the second degree. Defendant was sentenced,
as a second felony offender, to an aggregate prison term of 13
years, followed by five years of postrelease supervision.
Defendant appeals, and we affirm.
To begin, we find no merit to defendant's argument that
County Court erred in denying his motion to suppress the oral
statements he made to law enforcement. At the suppression
hearing, a detective involved in the investigation of the
shooting and another member of the Kingston Police Department
testified that they located defendant at a particular residence
and that defendant voluntarily agreed to go to the police station
for questioning, without ever requesting counsel. The detective
testified that, before defendant made the incriminating
statements, he read defendant his Miranda rights from a prepared
card and defendant understood and waived those rights and agreed
to speak with him without an attorney. The detective asserted
that, after defendant made several admissions to him, he and
another detective reinterviewed defendant and that this second
interview, which was recorded and viewed by the court, was
preceded by a readministration of defendant's Miranda rights,
which he again waived. County Court expressly credited this
testimony, which supported its determination that the People
proved beyond a reasonable doubt that defendant's admissions were
made after he knowingly, intelligently and voluntarily waived his
Miranda rights (see People v Kidd, 112 AD3d 994, 996-997 [2013],
lv denied 23 NY3d 1039 [2014]; People v Westervelt, 47 AD3d 969,
971-972 [2008], lv denied 10 NY3d 818 [2008]; People v Baker, 27
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AD3d 1006, 1008 [2006], lv denied 7 NY3d 785 [2006]).1
Accordingly, County Court properly denied defendant's motion to
suppress his statements.
We next address defendant's assertion that his convictions
are not supported by legally sufficient evidence and are also
against the weight of the evidence. Although defendant's general
motion to dismiss did not preserve his challenge to the legal
sufficiency of the evidence supporting his convictions (see
People v Gray, 86 NY2d 10, 20 [1995]; People v Junior, 119 AD3d
1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]), in the course
of our weight of the evidence review, we necessarily evaluate
whether the elements of the challenged crimes were proven beyond
a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349
[2007]; People v Williams, 138 AD3d 1233, 1234 [2016], lvs denied
28 NY3d 932, 939 [2016]). Where, as here, a different verdict
would not have been unreasonable, we "'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 490, 495 [1987], quoting
People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).
As relevant here, a person is guilty of criminal possession
of a weapon in the second degree when he or she knowingly
possesses any loaded firearm outside of his or her home or place
of business (see Penal Law § 265.03 [3]). Additionally, a person
is guilty of criminal possession of a weapon in the third degree
when he or she knowingly possesses any firearm and he or she has
been previously convicted of any crime (see Penal Law §§ 265.02
1
We note that, unlike at trial, defendant did not present
any evidence at the suppression hearing to support his claim that
he invoked his right to counsel prior to arriving at the police
station.
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[1]; 265.01 [1]).2 A defendant "may not be convicted of any
offense solely upon evidence of a confession or admission made by
him [or her] without additional proof that the offense charged
has been committed" (CPL 60.50; see People v McGee, 20 NY3d 513,
517 [2013]). This statutory corroboration requirement is
satisfied by "'some proof, of whatever weight,' that the offense
charged has in fact been committed by someone" (People v Booden,
69 NY2d 185, 187 [1987], quoting People v Daniels, 37 NY2d 624,
629 [1975]; accord People v Cole, 24 AD3d 1021, 1024 [2005], lv
denied 6 NY3d 832 [2006]) and "does not mandate submission of
independent evidence of every component of the crime charged"
(People v Chico, 90 NY2d 585, 589 [1997]; People v Guillery, 260
AD2d 661, 661 [1999], lv denied 93 NY2d 971 [1999]).
At trial, the jury heard defendant's audiotaped confession
that he possessed a .38 caliber revolver and shot the victim on
the evening in question outside of Kennedy Fried Chicken. The
investigating detective testified that defendant made the
incriminating statements after having been informed of his
Miranda rights and having waived those rights and that at no
point did defendant request an attorney. Defendant's confession
was corroborated by the victim's testimony that he was shot while
walking towards Kennedy Fried Chicken, as well as testimonial
evidence placing defendant outside of the restaurant at the time
of the shooting (see People v Booden, 69 NY2d at 187; People v
Baltes, 75 AD3d 656, 659 [2010], lv denied 15 NY3d 918 [2010])
and the detective's testimony that a .38 caliber revolver does
not eject shell casings, instead keeping them within the
cylinder, and that no shell casings were found at the scene (see
People v Hawkins, 110 AD3d 1242, 1243 [2013], lv denied 22 NY3d
2
As alleged in a special information attached to the
indictment, defendant admitted prior to trial that he had been
previously convicted of criminal possession of a controlled
substance in the seventh degree and, thus, that element of the
crime was established (see CPL 200.60 [3] [a]; People v Ward, 141
AD3d 853, 859 n 2 [2016]).
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1041 [2013]; People v Thompson, 75 AD3d 760, 764 [2010], lv
denied 15 NY3d 896 [2010]). Although at trial defendant
contested the voluntariness of his confession through his cross-
examination of the People's witnesses and by offering the
testimony of his girlfriend's mother that he had repeatedly
invoked his right to counsel prior to giving his statement, the
jury clearly rejected defendant's version of events. Inasmuch as
the People proved the voluntariness of defendant's statements
beyond a reasonable doubt and those statements were sufficiently
corroborated, and according appropriate deference to the jury's
credibility determinations (see People v Lind, 133 AD3d 914, 917
[2015], lv denied 27 NY3d 1153 [2016]), we are satisfied that the
verdict was not against the weight of the evidence (see People v
Hawkins, 110 AD3d at 1243; People v Johnson, 79 AD3d 1264, 1266
[2010], lv denied 16 NY3d 832 [2011]).
Defendant also argues that County Court should have granted
his request for a jury charge instructing that, if the jury were
to find that he had requested an attorney before making
incriminating statements to law enforcement, then his statements
were taken in violation of his constitutional right to counsel.3
Through his cross-examination of the detective and his
presentation of testimonial evidence that he had repeatedly
invoked his right to counsel prior to questioning, defendant
placed the voluntariness of his confession in issue, and County
Court therefore properly charged the jury on that matter (see CPL
710.70 [3]; People v Griswold, 58 NY2d 633, 635 [1982]; People v
Maddox, 198 AD2d 804, 804 [1993], lv denied 82 NY2d 898 [1993]).
Defendant, however, was not entitled to a further charge
3
Although County Court had completed its charge, contrary
to County Court's determination, defendant's request was not
untimely, as the court had an ample opportunity to address the
request and the jury had yet to retire to deliberations (see CPL
300.10 [5]; 470.05 [2]; People v Mariano, 101 AD3d 1367, 1368
[2012]; People v Sztuk, 126 AD2d 950, 950 [1987], lv denied 69
NY2d 887 [1987]; People v Lewis, 116 AD2d 16, 19 [1986]).
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regarding his alleged invocation of his constitutional right to
counsel, as that question involves a legal determination to be
resolved by the trial court, not the jury (see CJI2d[NY]
Statements [Admissions, Confessions] n 3; People v Dawson, 166
AD2d 808, 810 [1990], lv denied 77 NY2d 876 [1991]; People v
Medina, 146 AD2d 344, 350 [1989], affd 76 NY2d 331 [1990]; see
also People v Ridgeway, 59 AD3d 1111, 1112 [2009], lv denied 12
NY3d 820 [2009]). Accordingly, County Court properly denied
defendant's request for a jury charge specifically addressing his
right to counsel.
Defendant's remaining contentions require little
discussion. His failure to raise timely and specific objections
at trial renders his claims of prosecutorial misconduct during
the People's summation unpreserved (see CPL 470.05 [2]; People v
Stanford, 130 AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043
[2015]; People v Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18
NY3d 922 [2012]), and we decline to take corrective action in the
interest of justice inasmuch as the challenged comments either
constituted a fair comment on the evidence or were responsive to
statements made by defense counsel during summation (see People v
Fomby, 101 AD3d 1355, 1357 [2012]; People v Hall, 57 AD3d 1229,
1231 [2008], lv denied 12 NY3d 784 [2009]). Further, we are
unpersuaded by defendant's contention that the cumulative effect
of various, yet undefined, alleged errors deprived him of a fair
trial, as our review of the record as a whole reveals otherwise
(see People v Mitchell, 129 AD3d 1319, 1322 [2015], lv denied 26
NY3d 1041 [2015]; People v Green, 270 AD2d 566, 569 [2000], lv
denied 95 NY2d 853 [2000]). As a final matter, we find no merit
to defendant's assertion that his aggregate prison sentence of 13
years, followed by five years of postrelease supervision, is
harsh and excessive. While we may reduce a sentence in the
interest of justice where there are extraordinary circumstances
or an abuse of discretion on the part of the sentencing court
(see CPL 470.15 [3] [c]; People v Luckette, 126 AD3d 1044, 1046
[2015], lv denied 26 NY3d 1110 [2016]), we discern no such
extraordinary circumstances or abuse of discretion here,
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particularly considering the nature of the offense and
defendant's lengthy criminal history (see People v Nelson, 128
AD3d 1225, 1228 [2015], lv denied 26 NY3d 1041 [2015]; People v
Bianca, 91 AD3d 1127, 1130 [2012], lv denied 19 NY3d 862 [2012];
People v Mann, 63 AD3d 1372, 1374 [2009], lv denied 13 NY3d 861
[2009]).
McCarthy, J.P., Garry, Devine and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court