

People v Torres (2016 NY Slip Op 08115)





People v Torres


2016 NY Slip Op 08115


Decided on December 1, 2016


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 December 1, 2016

Tom, J.P., Acosta, Andrias, Moskowitz, Kahn, JJ.


2365 4899/09

[*1]The People of the State of New York, Respondent,
vMiguel Torres, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered July 18, 2013, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
The court properly denied defendant's suppression motion. The record supports the court's finding that defendant's statement was voluntary under the totality of the circumstances, notwithstanding that his arraignment on the drug charge for which he was under arrest was delayed by interrogation regarding the homicide for which he was a suspect (see People v Jin Cheng Lin, 26 NY3d 701, 723-725 [2016]).
At trial, the court properly exercised its discretion in making a preliminary ruling that, in the event defendant
attempted to cast doubt on the voluntariness of his statements by claiming he did not understand English, and by challenging a detective's testimony that Miranda warnings were given in Spanish, the People would be permitted to introduce defendant's videotaped statement, in connection with an unrelated arrest, which the People represented would demonstrate that defendant spoke and understood English. Defendant ultimately avoided opening the door to the videotape, and it was not placed in evidence. The court's tentative ruling was appropriate, since the videotape would presumably have been probative of defendant's ability to speak English, even if it revealed an uncharged crime. Moreover, this was only a provisional ruling, and had defendant actually pursued the line of defense at issue, matters such as redaction of prejudicial matter could have been litigated. Defendant did not preserve his claim that his constitutional right to present a defense was violated, and we decline to review it in the interest of justice. As an alternative holding, we find it without merit, because the right to present a defense does not include the right to be free of the consequences of opening the door to otherwise inadmissible evidence.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 1, 2016
CLERK


