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taking judicial notice of criminal indictment, a "public record"
Summary of this case from People v. SuarezOpinion
KA 01-01879.
Decided June 14, 2004.
Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered April 3, 2001. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree (two counts), robbery in the first degree (two counts), burglary in the second degree and robbery in the third degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (SUSAN R. RIDER OF COUNSEL), FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, of various crimes related to a home invasion robbery. As we previously determined in the appeals of defendant's two codefendants, the stop of the vehicle occupied by defendant and his two codefendants was proper ( People v. Russ, 300 A.D.2d 1031, 1032, lv denied 99 N.Y.2d 632; People v. Thompson, 300 A.D.2d 1032, 1033, lv denied 99 N.Y.2d 620). We reject defendant's contention that the indictment was not properly authenticated. Although the cover sheet of the indictment was not included in the record on appeal, we take judicial notice of it because it is a public record ( see People v. Sanchez, 98 N.Y.2d 373, 401 n 13). The cover sheet establishes that the indictment was properly authenticated ( see CPL 200.50; Brotherton v. People, 75 N.Y. 159, 162).
We further conclude that County Court properly denied the motion of defendant to suppress his statement to the police. In denying defendant's motion, the court credited the testimony of the police officers, and such credibility determinations will not be disturbed unless they are "`clearly erroneous'" ( People v. Evans, 278 A.D.2d 937, 937, lv denied 96 N.Y.2d 783; see generally People v. Prochilo, 41 N.Y.2d 759, 761). Contrary to the contention of defendant, the court did not err in denying his challenge for cause to a prospective juror who unequivocally stated that his daughter's friendship with one of the alleged victims would not affect the prospective juror's ability to keep an open mind ( see CPL 270.20 [b], [c]; People v. Chambers, 97 N.Y.2d 417, 419; People v. Horace, 277 A.D.2d 957, lv denied 96 N.Y.2d 784).
Also contrary to defendant's contention, we conclude that the court properly allowed one of the alleged victims to identify defendant for the first time at trial. "`In cases where there has been no pretrial identification procedure and the defendant is identified in court for the first time, the defendant is not deprived of a fair trial because [defendant] is able to explore weaknesses and suggestiveness of the identification in front of the jury'" ( People v. Brazeau, 304 A.D.2d 254, 257, lv denied 100 N.Y.2d 579, quoting People v. Medina, 208 A.D.2d 771, 772, lv denied 84 N.Y.2d 1035). In addition, we conclude that the court properly admitted the physical items of evidence introduced by the People at trial. The testimony of the People's witnesses provided reasonable assurances of the identity and unchanged condition of those items, and any deficiencies in the chain of custody of those items went to the weight to be accorded those items, not their admissibility ( see People v. Julian, 41 N.Y.2d 340, 343-344).
Defendant's motion to dismiss at the close of the People's case was not specifically directed at the errors alleged on appeal, and defendant thus has failed to preserve for our review his present contention concerning the alleged legal insufficiency of the evidence ( see People v. Gray, 86 N.Y.2d 10, 19). In any event, we conclude that the evidence is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). We further conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147) and that the sentence is not unduly harsh or severe. Finally, defendant failed to preserve his remaining contentions for our review ( see CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).