                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   106755
________________________________

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

RICARDO ZAYAS-TORRES,
                    Appellant.
________________________________


Calendar Date:   September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


      Terence L. Kindlon, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant, and appellant pro se.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered December 14, 2012, upon a verdict
convicting defendant of the crimes of burglary in the second
degree (three counts) and criminal possession of stolen property
in the third degree.

      On Christmas night in 2011, the residents of two apartments
in the City of Albany discovered that someone had entered their
homes in their absence and stolen various items including
televisions, cameras and a pair of Louis Vuitton sunglasses. A
few weeks later, in a thrift shop owned by a mutual acquaintance,
defendant approached an individual who regularly bought and sold
antiques and jewelry and asked her to sell a pair of Louis
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Vuitton sunglasses for him on commission. She initially agreed
to do so and, in defendant's presence, placed the sunglasses in a
safe in her apartment; however, she later called off the
transaction and returned the sunglasses to defendant. Shortly
thereafter, this individual returned home after an absence to
find that her apartment had been entered, her safe had been
broken into, and jewelry and other items had been removed.

      The following day, the owner of the thrift shop reported
that defendant had told him that he had broken into the apartment
and stolen the jewelry. Defendant was arrested and police
executed a search warrant at his home, finding items that the
victims of all three burglaries identified as their stolen
property. Defendant told police that he had taken property from
two of the apartments and had assisted another individual in
taking property from the third apartment. He was charged in a
five-count indictment with burglary in the second degree (three
counts), grand larceny in the third degree and criminal
possession of stolen property in the third degree. Following a
jury trial, he was acquitted of the grand larceny charge,
convicted of the remaining charges, and sentenced to an aggregate
prison term of 14 years with five years of postrelease
supervision. Defendant appeals.

      We reject defendant's contention that the indictment should
be dismissed because he was improperly deprived of his right to
testify before the grand jury. A defendant who fails to
challenge an indictment within five days of arraignment waives
the right to seek dismissal on this ground (see CPL 190.50 [5]
[c]; People v Welden, 140 AD3d 1406, 1406 [2016], lv denied 28
NY3d 938 [2016]). Defendant raised no such challenge;
accordingly, the argument has been waived. As for defendant's
assertion that he received the ineffective assistance of counsel
based upon his counsel's failure to secure his right to testify,
such a failure "does not, per se, amount to a denial of effective
assistance of counsel," even when it results from error rather
than strategy (People v Wiggins, 89 NY2d 872, 873 [1996]). To
establish such a claim, "a defendant must show prejudice – for
example, that if he or she had testified in the grand jury, the
outcome would have been different" (People v Hogan, 26 NY3d 779,
787 [2016] [internal quotation marks, ellipsis and citation
                              -3-                106755

omitted]). Here, defendant – who testified at trial and was
nevertheless convicted of several crimes – has shown no such
prejudice (see People v Carlton, 120 AD3d 1443, 1444-1445 [2014],
lv denied 25 NY3d 1070 [2015]; People v Lasher, 74 AD3d 1474,
1476 [2010], lv denied 15 NY3d 894 [2010]).

      County Court properly denied defendant's motion to suppress
his statements to police and the physical evidence found in his
home. Contrary to defendant's claim, police testimony at the
joint Mapp/Dunaway/Huntley hearing and a video of defendant's
interrogation following his arrest established that he was "fully
informed of, understood and waived his Miranda rights before any
questioning commenced" (People v Carter, 140 AD3d 1394, 1395
[2016], lv denied ___ NY3d ___ [Sept. 26, 2016]). As for
defendant's claim that police improperly coerced his confession,
the hearing testimony and video reveal that, during the first
part of the interview, defendant denied any knowledge of the
thefts. After approximately an hour, police stopped questioning
him and left to execute the search warrant. Upon their return,
they informed defendant that items from the burglaries had been
found in his home, and he admitted his involvement. Defendant
asserts that police improperly coerced him to make this admission
by threatening to arrest his girlfriend and place his children
with child protective authorities if he did not take
responsibility for the presence of the stolen items in the
apartment. However, the girlfriend resided with defendant in the
apartment where the stolen items were found, and, thus, the
warning that she might be implicated was not deceptive. It is
well established that "police are free 'to capitalize on a
defendant's sense of shame or reluctance to involve his family in
a pending investigation absent circumstances which create a
substantial risk that [he or she] might falsely incriminate
himself [or herself]'" (People v Cavallaro, 123 AD3d 1221, 1223
[2014], quoting People v Johnson, 177 AD2d 791, 792 [1991]).
Under the totality of the circumstances presented, we agree with
County Court that no substantial risk of false incrimination was
present and the People met their burden to prove that defendant's
statements were voluntary (see People v Mateo, 2 NY3d 383, 419
[2004], cert denied 542 US 946 [2004]; People v Cavallaro, 123
AD3d at 1223; People v Balkum, 71 AD3d 1594, 1597 [2010], lv
denied 14 NY3d 885 [2010]).
                              -4-                106755

      We further reject defendant's contention that the search
warrant was not supported by probable cause. Contrary to
defendant's argument, County Court was not required to apply the
Aguilar-Spinelli standard to establish the informant's
reliability and basis of knowledge. That test applies to
information supplied by confidential informants (see People v
Martinez, 80 NY2d 549, 552 [1992]). By contrast, "[the] sworn
statement of an identified member of the community attesting to
facts directly and personally observed by him [or her] is in and
of itself sufficient to support the issuance of a search warrant"
(People v David, 234 AD2d 787, 788 [1996], lv denied 89 NY2d 1034
[1997]). Here, the warrant application included the signed and
sworn statement of a fully identified witness. The information
contained in the statement arising from the firsthand
observations of that witness was sufficient to provide the
issuing court with probable cause to believe that defendant had
committed the burglaries and that the stolen property identified
in the application would be found in defendant's home (see People
v Banks, 14 AD3d 726, 727 [2005], lv denied 4 NY3d 851 [2005];
People v Bourdon, 258 AD2d 810, 811 [1999], lv denied 93 NY2d 897
[1999]; People v David, 234 AD2d at 787-788).

      Defendant's contention that his counsel was ineffective for
failing to obtain suppression of his statement on the ground that
the police lacked probable cause for his arrest is without merit.
The record belies defendant's claim that his counsel failed to
raise an appropriate challenge to his warrantless arrest; the
joint Dunaway/Mapp/Huntley hearing was conducted at defense
counsel's behest. The hearing testimony established, among other
things, that defendant's arrest was based upon the thrift shop
owner's statement to police that defendant had supplied him with
certain items that proved to be stolen property. Defense counsel
actively cross-examined the People's witnesses, in an attempt to
establish that this evidence was unreliable. Despite counsel's
efforts, County Court concluded that police had probable cause to
arrest defendant without a warrant, and we find no error in that
determination (see CPL 140.10 [1] [b]; People v Mantia, 299 AD2d
664, 666 [2002], lv denied 99 NY2d 617 [2003]). Defense counsel
was not ineffective for failing to renew this argument at trial
or to make various other arguments related to defendant's
allegedly improper arrest that defendant now contends should have
                              -5-                106755

been raised. "[F]ailure to make a motion or argument that has
little or no chance of success" does not constitute the
ineffective assistance of counsel (People v Caban, 5 NY3d 143,
152 [2005] [internal quotation marks and citation omitted]; see
People v Carver, 27 NY3d 418, 421 [2016]). The record reveals
that counsel made appropriate pretrial motions, cross-examined
witnesses effectively, pursued a coherent theory of defense and
obtained an acquittal on one of the charges. "Viewing the
evidence, the law, and the circumstances of the case in totality
and as of the time of the representation, we find that counsel
provided meaningful representation" (People v Jackson, 48 AD3d
891, 894 [2008], lv denied 10 NY3d 841 [2008]; see People v
Baldi, 54 NY2d 137, 147 [1981]).1

      Next, defendant contends that his convictions are not
supported by legally sufficient evidence and are against the
weight of the evidence in that the People failed to prove his
intent or his actual knowledge that the items found in his
apartment were stolen. Defendant's legal sufficiency argument is
unpreserved, as he did not raise these specific arguments in his
general motion for a trial order of dismissal (see People v
Farnsworth, 134 AD3d 1302, 1303 [2015], lv denied 27 NY3d 1068
[2016]). "Nevertheless, our weight of the evidence analysis
necessarily involves an evaluation of whether all elements of the
charged crimes were proven beyond a reasonable doubt at trial"
(People v Harden, 134 AD3d 1160, 1160 [2015] [internal quotation
marks and citations omitted], lv denied 27 NY3d 1133 [2016]; see
People v Danielson, 9 NY3d 342, 348-349 [2007]).

      At trial, the victims testified that the property found by
police in defendant's apartment included televisions, speakers
and other items that they identified as property stolen from
their homes. The victim whose safe was broken into stated that


    1
        To the extent that defendant's claims related to his
counsel's alleged failures are based on matters outside the
record, they are improperly raised upon direct appeal and should
rather be raised in a motion to vacate the judgment pursuant to
CPL article 440 (see People v Haffiz, 19 NY3d 883, 885 [2012];
People v Carlton, 120 AD3d at 1445).
                              -6-                106755

her stolen jewelry was worth between $7,000 and $10,000. The
thrift shop owner testified that defendant offered to sell him
video games and other electronic items that corresponded with
some of the stolen items, and that he saw televisions
corresponding with the stolen items in defendant's home. He
further stated that a broken television found by police in his
thrift shop had been brought there by defendant, who said that he
had dropped it. Other testimony established that this television
had been stolen from one of the victims and was not broken before
it was stolen, and the remote control that operated it was found
in defendant's apartment. The thrift shop owner further
described the telephone call in which defendant told him that he
had broken into one of the apartments and had stolen jewelry.
The video recording of the police interview was admitted into
evidence, in which defendant admitted that he had entered two of
the apartments through windows, had assisted a third party in
burglarizing the third apartment and had taken jewelry and
electronics. Defendant's account during this interview included
accurate details about the thefts that police testified they had
not communicated to him.

      Defendant testified at trial, contradicted his earlier
admissions and denied the thefts. He claimed that he did not
know that the property found in his apartment was stolen, stating
that it came from the thrift shop and that he was storing it at
the owner's request. He further testified that he worked in the
thrift shop on commission – which the thrift shop owner denied –
and that the owner had directed him to arrange to have the
customer sell the Louis Vuitton sunglasses. He denied the
customer's testimony that he had gone to her apartment to arrange
the sale of the sunglasses; however, a receipt from the
transaction was found in his wallet. Deferring to the jury's
credibility determinations and viewing the evidence in a neutral
light, we are persuaded that the verdict is not against the
weight of the evidence (see People v Carter, 140 AD3d at 1395;
People v Morrison, 127 AD3d 1341, 1343 [2015], lv denied 26 NY3d
932 [2015]; People v Helms, 119 AD3d 1153, 1154-1155 [2014], lv
denied 24 NY3d 1044 [2014]).

      We reject defendant's contention that his sentence is harsh
and excessive. The fact that the sentence is longer than a
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pretrial plea offer, without more, does not establish that he was
punished for rejecting the offer and proceeding to trial (see
People v Royster, 107 AD3d 1298, 1301-1302 [2013], lv denied 22
NY3d 958 [2013]; People v Souffrant, 93 AD3d 885, 887 [2012], lv
denied 19 NY3d 968 [2012]). County Court expressly stated that
the sentence was not premised upon defendant's exercise of his
right to trial, noting that the account of events he had offered
was not truthful. The sentence imposed was lower than the
maximum, and in view of defendant's failure to accept
responsibility or express remorse, we find no abuse of discretion
or extraordinary circumstances warranting modification (see
People v Sparks, 105 AD3d 1073, 1074-1075 [2013], lvs denied 21
NY3d 1003, 1010 [2013]). Defendant's remaining contentions have
been examined and found to be without merit.

     Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
