PEOPLE v. BURGOS (2025)

Judgment, Supreme Court, New York County (Neil Ross, J., at suppression hearing;  Barry Warhit, J., at plea;  Steven Statsinger, J., at sentencing), rendered August 21, 2019, as amended September 26, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of seven years, unanimously affirmed.

The court providently denied defendant's motion to suppress the drugs and drug paraphernalia that were in plain view in defendant's vehicle.  The detective's view of drug paraphernalia in plain view from a “lawful vantage point” permitted him to remove defendant from the car and recover the paraphernalia (see People v. Tyler, 262 A.D.2d 136, 692 N.Y.S.2d 56 [1st Dept. 1999], lv denied 93 N.Y.2d 1046, 697 N.Y.S.2d 878, 720 N.E.2d 98 [1999]).  Since the detective had lawfully entered the vehicle when he observed, in plain view, what appeared to be heroin sticking out of a trap on the back of the passenger seat, he was permitted to seize those drugs (see People v. Webb, 291 A.D.2d 319, 737 N.Y.S.2d 618 [1st Dept. 2002];  People v. Thomas, 275 A.D.2d 276, 277, 712 N.Y.S.2d 548 [1st Dept. 2000], lv denied 95 N.Y.2d 939, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000]).  We see no reason to disturb the credibility findings of the hearing court (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977]).

The hearing court providently exercised its discretion in qualifying the police witness to testify as an expert in the operation of traps, used to conceal contraband in vehicles.  To be qualified as an expert, the court should determine whether the witness has “professional or scientific knowledge or skill not within the range of ordinary training or intelligence” (People v. Cronin, 60 N.Y.2d 430, 432, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983]).  Here, the expert was sufficiently qualified to give testimony on whether the trap had been pried open, based on his specialized training on traps as well as his practical experience, where he had personally uncovered more than 60 traps, and had seen well over 150 traps (see People v. Bryson, 101 A.D.3d 478, 954 N.Y.S.2d 866 [1st Dept. 2012]).

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters of strategy not reflected in, or fully explained by, the record (see People v. Campbell, 30 N.Y.3d 941, 942–943, 67 N.Y.S.3d 125, 89 N.E.3d 515 [2017];  People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]).  Since defendant has not made a CPL 440.10 motion, the merits of his ineffectiveness claim may not be addressed on appeal.  As an alternative holding, to the extent that the existing record permits review, we find that defendant received effective assistance (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown that counsel's failure to object to admission of a prior consistent statement by the detective fell below an objective standard of reasonableness, or that it deprived defendant of a fair trial or affected the outcome of the suppression hearing (see People v. Ludwig, 24 N.Y.3d 221, 230, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014]).