

People v Acosta (2015 NY Slip Op 07445)





People v Acosta


2015 NY Slip Op 07445


Decided on October 13, 2015


Appellate Division, First Department


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.



Decided on October 13, 2015

Tom, J.P., Acosta, Richter, Kapnick, JJ.


15859 1532/10

[*1] The People of the State of New York, Respondent,
vRaymond Acosta, also knows as Big Pun, etc., Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Darcel D. Clark, J. at suppression hearing; Caesar D. Cirigliano, J. at jury trial and sentencing), rendered April 10, 2012, convicting defendant of attempted assault in the second degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
Defendant's motion to suppress a statement was properly denied. Although defendant was in custody and had not yet received Miranda warnings, the record supports the hearing court's finding that his statement was spontaneous and not the product of custodial interrogation. Where a defendant's inquiry concerning the reason for an arrest is "immediately met by a brief and relatively innocuous answer by the police officer," there is no interrogation or its functional equivalent (People v Rivers, 56 NY2d 476, 480 [1982]; compare People v Lanahan, 55 NY2d 711 [1981] [detailed recital of evidence held equivalent to interrogation]). The detective briefly responded to defendant's inquiry by referring to an incident that occurred at Richman Plaza in 2008, and pointing to a wanted poster containing defendant's photograph. This constituted an innocuous reply to defendant's question, and it was not reasonably likely to elicit an incriminating response (see Rivers, 56 NY2d at 480). Moreover, rather than being placed in the room in an effort to encourage defendant to make a statement, the poster had been placed there long before defendant's arrest.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The fact that the jury acquitted defendant of other charges does not warrant a different conclusion (see People v Rayam, 94 NY2d 557 [2000]).
Defendant's argument that the court had a sua sponte obligation to disclose certain markings found on the jury's verdict sheet is unavailing (see People v Boatwright, 297 AD2d
603, 604 [1st Dept 2002], lv denied 99 NY2d 533 [2002]; see also Matter of Suarez v Byrne, 10 NY3d 523, 528 n 3 [2008]["Marks on verdict sheets are not verdicts"]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 13, 2015
CLERK


