                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 5, 2015                      105122
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

RAYMOND WRIGHT,
                    Appellant.
________________________________


Calendar Date:    January 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                              __________


      Adam G. Parisi, Schenectady, for appellant, and appellant
pro se.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Coccoma, J.),
rendered September 26, 2011 in Schenectady County, upon a verdict
convicting defendant of the crimes of burglary in the second
degree and grand larceny in the fourth degree.

      Defendant was charged in a three-count indictment with
burglary in the second degree, grand larceny in the fourth degree
and menacing in the second degree following an August 2010
incident wherein defendant entered the home of Kristi Kenyon (his
former girlfriend) – through a window and in the middle of the
night – and, among other things, attempted to stab Kenyon's new
boyfriend with what was described as a serrated kitchen knife.
When Kenyon tried to call 911, defendant grabbed her cell phone
                              -2-                105122

and fled the scene. After locating another cell phone in the
residence, Kenyon called for help – reporting that she had been
stabbed.1

      Shortly thereafter, defendant was spotted by various
members of the Schenectady Police Department less than one block
from Kenyon's residence and was stopped and questioned. On
numerous occasions after being approached by the officers – and
both prior to and after being advised of his Miranda rights –
defendant made certain statements implicating himself in the
attack. Following a jury trial, defendant was convicted of
burglary in the second degree and grand larceny in the fourth
degree and thereafter was sentenced, as a second violent felony
offender, to 12 years in prison and five years of postrelease
supervision with respect to the burglary conviction and to a
lesser and concurrent term of imprisonment as to the grand
larceny conviction. Defendant now appeals.

      We affirm. To the extent that defendant's pro se challenge
to his initial detainment by the police has been preserved for
our review, we find it to be lacking in merit. "Probable cause
does not require proof sufficient to warrant a conviction beyond
a reasonable doubt but merely information sufficient to support a
reasonable belief that an offense has been . . . committed by the
person arrested. Accordingly, a police officer may effect a
warrantless arrest when he or she observes a suspect in close
geographic and temporal proximity to the crime scene and the
suspect's appearance matches a sufficiently detailed description
of the perpetrator received by the officer" (People v August, 33
AD3d 1046, 1048 [2006], lv denied 8 NY3d 878 [2007] [internal
quotation marks and citations omitted]; see People v Robinson,
101 AD3d 1245, 1245-1246 [2012], lv denied 20 NY3d 1103 [2013]).
Here, while en route to Kenyon's residence in response to her 911


    1
        At some point during the melee, Kenyon was struck in the
chest with what she initially believed to be a knife. A broken
hammer was recovered at the scene, and a circular bruise –
consistent in appearance with the head of a hammer – is apparent
in a photo of Kenyon's chest taken at a local hospital following
the incident.
                              -3-                105122

call, officers spotted defendant – whose description and clothing
matched that provided by Kenyon – less than one block from
Kenyon's residence. Accordingly, we are satisfied that
defendant's arrest was supported by probable cause.

      Defendant next contends that this matter must be remitted
for resolution of his suppression motion. We disagree. The
record reflects that the underlying Huntley hearing was conducted
by a judicial hearing officer pursuant to CPL 255.20 (4), who
recommended that defendant's motion be denied in all respects.
Not long after the judicial hearing officer's report was issued,
this matter was removed from County Court to Supreme Court –
apparently without either court formally "determin[ing] the
motion" within the meaning of the statute (CPL 255.20 [4]).
However, "[a] court's failure to expressly rule on a motion is
deemed a denial thereof" (People v Ashley, 89 AD3d 1283, 1284
[2011], lv denied 18 NY3d 955 [2012]; see People v Ott, 83 AD3d
1495, 1497 [2011]). Moreover, prior to jury selection, defense
counsel expressed his concerns regarding "the results" of the
Huntley hearing and the corresponding admissibility of certain of
defendant's statements, thereby evidencing an understanding that
the subject motion had (at least effectively) been denied. Under
these circumstances, remittal is not warranted.

      As to the admissibility of the statements, defendant
contends that Supreme Court erred in admitting into evidence
certain statements that he made to members of the Schenectady
Police Department (1) when he initially was approached by the
police near the scene of the crime, (2) while he was being
transported to the police station in a patrol vehicle, (3) after
he was advised of his Miranda warnings at the police station and
interviewed, and (4) after he invoked his right to counsel.
Preliminarily, a review of the trial transcript reveals that
defendant did not object to the admission of any of the now
challenged statements and, therefore, we find this issue to be
unpreserved for our review (see CPL 470.05 [2]; People v Devers,
82 AD3d 1261, 1262 [2011], lv denied 17 NY3d 794 [2011]; People v
Perkins, 24 AD3d 890, 891 [2005], lv denied 6 NY3d 816 [2006]).
In any event, we are satisfied – upon reviewing the record – that
the contested statements either were not the product of a
custodial interrogation, were spontaneous or represented a
                              -4-                105122

voluntary statement made following a valid waiver of defendant's
Miranda rights (see People v Kenyon, 108 AD3d 933, 935-936
[2013], lv denied 21 NY3d 1075 [2013]). Moreover, even if we
were to otherwise find merit to defendant's argument on this
point, we would deem any error in this regard to be harmless in
light of the overwhelming evidence of his guilt (see e.g. People
v Rodriguez, 55 AD3d 351, 351-352 [2008], lv denied 12 NY3d 762
[2009]; People v Jones, 47 AD3d 446, 446 [2008], lv denied 10
NY3d 841 [2008]) – most notably, the testimony offered by Kenyon
and her new boyfriend as to defendant's actions on the morning in
question.

      As a final matter, defendant contends that he was deprived
of a fair trial because the jury was permitted to view that
portion of the interrogation video wherein defendant invoked his
right to counsel. Although there is no question that "[a]
defendant's invocation of his [or her] right . . . to counsel
. . . cannot be used against him [or her] during the People's
direct case" (People v Hunt, 18 AD3d 891, 892 [2005]), defendant
– as noted previously – rendered no objection when the subject
video was admitted into evidence, nor did he request that the
video be redacted in any fashion and/or seek any sort of limiting
instruction with respect thereto. Hence, this issue is
unpreserved for our review (see People v Demagall, 114 AD3d 189,
201-202 [2014], lv denied 23 NY3d 1035 [2014]). In any event, in
light of the overwhelming evidence of defendant's guilt, the
admission of this particular portion of the video constitutes
harmless error (see People v Daniels, 115 AD3d 1364, 1365 [2014],
lv denied 23 NY3d 1019 [2014]; People v Vrooman, 115 AD3d 1189,
1190 [2014], lv denied 23 NY3d 969 [2014]). Defendant's
remaining contentions, including his assertion that the People
improperly superseded the original indictment and that he was
denied the effective assistance of counsel, have been examined
and found to be lacking in merit.

     Lahtinen, J.P., Lynch and Devine, JJ., concur.
                        -5-                  105122

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
