Opinion
No. 2008-05221.
February 9, 2010.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered May 16, 2008, convicting him of criminal possession of a weapon 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 physical evidence.
Bruce A. Petito, Poughkeepsie, N.Y., for appellant, and appellant prose.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Before: Fisher, J.P., Florio, Belen and Austin, JJ., concur.
Ordered that the judgment is affirmed.
To the extent that the defendant challenges the search of a backpack found in his girlfriend's vehicle on the ground that there was no probable cause for the search, his contention is unpreserved for appellate review ( see CPL 470.05; People v Pagan, 221 AD2d 571, 571-572) and, in any event, is without merit ( see People v Millan, 69 NY2d 514, 519; People v Robinson, 38 AD3d 572, 573; People v Gonzalez, 25 AD3d 620, 621; People v DeLaCruz, 242 AD2d 410, 411; People v Fredericks, 234 AD2d 472, 473).
"The defendant['s] [contention] that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt because the testimony of the accomplice was uncorroborated . . . is unpreserved for appellate review, as the defendant failed to move for dismissal at trial on this specific ground" ( People v Forino, 39 AD3d 664, 665; see CPL 470.05; People v Hawkins, 11 NY3d 484; People v Payne, 3 NY3d 266, 280). 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 ( see Penal Law § 265.03; People v Laing, 66 AD3d 1353; People v Tillery, 60 AD3d 1203, 1205; see also People v Curry, 52 AD3d 731).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15; People v Danielson, 9 NY3d 342), 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 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero, 7 NY3d 633).
The defendant's contention that the admission into evidence of certain tape-recorded 911 calls violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution is unpreserved for appellate review ( see People v Gonzalez, 44 AD3d 871, 872; see also CPL 470.05; People v Ward, 57 AD3d 582, 583; People v Mitchell, 35 AD3d 507, 507). In any event, admission of the caller's statements to the 911 operator did not violate the defendant's right of confrontation because the statements were not testimonial ( see People v Drummond, 34 AD3d 492, 493; see also People v Mitchell, 35 AD3d at 508; People v Conyers, 33 AD3d 929, 930; People v Cato, 22 AD3d 863; People v Marino, 21 AD3d 430, 431, cert denied 548 US 908).
The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80, 85).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, do not require reversal.