PEOPLE v. SMITH (2024)

Judgments, Supreme Court, New York County (Bruce Allen, J.), rendered July 15, 2015, convicting defendant, after a jury trial, of burglary in the first degree (three counts), burglary in the second degree (four counts), burglary in the third degree (two counts), robbery in the first degree (two counts), and criminal trespass in the second degree (two counts), and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life and order, same court (Ruth Pickholz, J.), entered on or about July 3, 2019, which denied defendant's CPL 440.10 motion to vacate the judgments, unanimously affirmed.

The court properly denied defendant's suppression motion.  The police, in response to a radio transmission regarding a suspicious male on a fire escape, observed defendant, who matched the description of the suspect, emerging from a window shortly after hearing a woman scream.  Upon seeing the officers, defendant ran up the fire escape to the roof of the building.  These circumstances provided reasonable suspicion for the police's pursuit and detention of defendant (see People v. Cumberbacths, 250 A.D.2d 505, 674 N.Y.S.2d 7 [1st Dept. 1998], lv denied 92 N.Y.2d 895, 680 N.Y.S.2d 59, 702 N.E.2d 844 [1998]).

Defendant's waiver of his Miranda rights and the statements he made at the precinct were not rendered involuntary by his heroin withdrawal symptoms.  Nothing in the record indicated that his symptoms arose “to the degree of mania” or otherwise rendered him unable to understand the nature of his rights or the waiver (People v. Adams, 26 N.Y.2d 129, 137, 309 N.Y.S.2d 145, 257 N.E.2d 610 [1970], cert denied 399 U.S. 931, 90 S.Ct. 2262, 26 L.Ed.2d 800 [1970];  see also People v. Buckman, 66 A.D.3d 1400, 1401, 886 N.Y.S.2d 271 [4th Dept. 2009], lv denied 13 N.Y.3d 937, 895 N.Y.S.2d 328, 922 N.E.2d 917 [2010];  People v. Frejomil, 184 A.D.2d 524, 524, 584 N.Y.S.2d 181 [2d Dept. 1992], lv denied 80 N.Y.2d 903, 588 N.Y.S.2d 829, 602 N.E.2d 237 [1992]).  The detectives testified that, throughout the interrogation, defendant appeared “very alert” and did not seem to have any trouble understanding what the detectives were saying.  Further, defendant admitted that he was mostly “cogent” and “lucid” during the interrogation.  The detectives’ testimony that they did not make any promises or threats to defendant, which testimony the court credited, refutes defendant's claim that the detectives promised to take him to the hospital only after he waived his Miranda rights.  We find no basis to disturb the court's credibility determinations.  Defendant's argument for suppressing his statements based on the delay between the arrest and arraignment is unavailing (see People v. Jin Cheng Lin, 26 N.Y.3d 701, 720, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016]).

The lineup identifications were not the product of an unduly suggestive procedure.  The fillers did not differ so much from defendant's appearance or the witnesses’ descriptions of the suspect as to single out defendant unfairly (see People v. Dixson, 147 A.D.3d 484, 484, 47 N.Y.S.3d 279 [1st Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017]).

The court providently exercised its discretion in terminating defendant's right to represent himself after the suppression hearing.  The record establishes that defendant's self-representation resulted in extensive delays, caused in part by his disruptive conduct and in part by his ongoing health problems (see People v. McIntyre, 36 N.Y.2d 10, 18, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974];  People v. Williams, 208 A.D.3d 65, 69, 171 N.Y.S.3d 10 [1st Dept. 2022], lv denied 38 N.Y.3d 1191, 176 N.Y.S.3d 222, 197 N.E.3d 502 [2022]).

Defendant's challenges to the People's comments on summation are unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal, because any improprieties in the summation did not rise to the level of reversible error (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).

The court properly denied defendant's CPL 440.10 motion.  Defendant's ineffective assistance of counsel claims were procedurally barred because he could have, but did not, raise them in his prior postconviction motions (CPL 440.10[3][c];  see People v. Holguin, 216 A.D.3d 436, 437–438, 188 N.Y.S.3d 49 [1st Dept. 2023], lv denied 40 N.Y.3d 935, 194 N.Y.S.3d 758, 215 N.E.3d 1199 [2023]).  In any event, the ineffective assistance claims, which involve matters not fully explained by the record, are unreviewable in the absence of an affirmation from trial counsel explaining counsel's strategic decisions (see People v. Stewart, 295 A.D.2d 249, 745 N.Y.S.2d 151 [1st Dept. 2002], lv denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 [2002], cert denied 538 U.S. 1003, 123 S.Ct. 1907, 155 L.Ed.2d 834 [2003]).  To the extent the record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).

Finally, the court properly declined to dismiss, as duplicitous, count 6 of the indictment alleging second-degree burglary.  Even if that count was originally duplicitous, the court's instructions to the jury cured the error by clarifying that it pertained to defendant's burglary of the apartment on the 11th floor of the building, as opposed to the office on the 4th floor (see People v. Retti, 224 A.D.2d 333, 333–334, 638 N.Y.S.2d 452 [1st Dept. 1996], lv denied 88 N.Y.2d 940, 647 N.Y.S.2d 174, 670 N.E.2d 458 [1996]).  Although the court referred to the wrong floor in response to a jury note seeking clarification on the count, this error did not prejudice defendant, as the court also referred to “apartment” and the name of the victim, and the jury did not request further clarification, which indicated that it understood the response.

We have considered the remaining arguments raised in defendant's pro se supplemental brief and find them unavailing.