PEOPLE v. DIOMANDE (2025)

Judgment, Supreme Court, New York County (Michele Rodney, J.), rendered January 22, 2019, convicting defendant, after a jury trial, of two counts each of robbery in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 13 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  The hearing record supports a finding that the testifying officer had a reasonable suspicion that defendant had committed an offense based upon the fact that he closely matched the detailed description of the robber broadcast over the radio, and given both the geographic and temporal proximity to the robbery, which occurred in the early morning hours (see People v. Scott, 223 A.D.3d 626, 627, 204 N.Y.S.3d 69 [1st Dept. 2024], lv denied 41 N.Y.3d 985, 210 N.Y.S.3d 747, 234 N.E.3d 363 [2024];  People v. Paige, 154 A.D.3d 415, 415, 60 N.Y.S.3d 816 [1st Dept. 2017], lv denied 30 N.Y.3d 1107, 77 N.Y.S.3d 6, 101 N.E.3d 392 [2018]).

Defendant failed to preserve his current argument that the testifying officer had to have learned of an “additional factor” in order to instruct defendant to stop only moments after other officers had ended their encounter with him, and we decline to consider it in the interest of justice.  As an alternative holding, we reject defendant's argument on the merits.  The record at the hearing established that the testifying officer's justification was not exhausted or dispelled by the time he stopped defendant (cf.  People v. Banks, 85 N.Y.2d 558, 562, 626 N.Y.S.2d 986, 650 N.E.2d 833 [1995], cert denied 516 U.S. 868, 116 S.Ct. 187, 133 L.Ed.2d 124 [1995]).  Nor did the record establish that the testifying officer had the same justification for stopping defendant as the other officers, that he was aware of the extent of their investigation or the suspicion supporting it, or that the duration or scope of the stops were individually or collectively unreasonable (see United States v. Foreste, 780 F.3d 518, 524–525 [2d Cir. 2015];  see also People v. Phillips, 159 A.D.2d 326, 326, 552 N.Y.S.2d 603 [1st Dept. 1990]).  (People v. Major is inapposite 263 A.D.2d 360, 360–361, 693 N.Y.S.2d 30 [1st Dept. 1999], lv denied 94 N.Y.2d 825, 702 N.Y.S.2d 596, 724 N.E.2d 388 [1999] [evidence only supported a common-law inquiry, and no additional factor was established following the first stop to warrant an increase from a common-law inquiry to a forcible stop and detention]).

Defendant's Confrontation Clause claim is unpreserved, and we decline to consider it in the interest of justice.  As an alternative holding, we find no Confrontation Clause violation, as the DNA analysts testimony establishes that she conducted her own independent analysis of the data, which she reviewed in a meaningful way to enable her to independently verify of the accuracy of the results, and that she was not merely a conduit for the conclusions of others (see People v. Jordan, 40 N.Y.3d 396, 400–403, 200 N.Y.S.3d 325, 223 N.E.3d 773 [2023];  People v. John, 27 N.Y.3d 294, 315, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [2016];  People v. Heyward, 214 A.D.3d 578, 580, 186 N.Y.S.3d 177 [1st Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 752, 215 N.E.3d 1193 [2023]).  In any event, we find that any alleged error in admitting such evidence would be harmless.

Defendant's challenges to the prosecutor's comments in summation are largely unpreserved (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006]), and we decline to consider them in the interest of justice.  As an alternative holding, we find no basis for reversal (see 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]).

Defendant's argument that the court misapprehended its sentencing discretion because it misapplied Penal Law § 70.25(2–b) is subject to preservation requirements (see People v. Garcia, 232 A.D.3d 553, 553, 220 N.Y.S.3d 310 [1st Dept. 2024], lv denied 43 N.Y.3d 930, 229 N.Y.S.3d 80, 254 N.E.3d 624 [2025];  People v. Dunbar, 183 A.D.3d 1263, 1264–1265, 123 N.Y.S.3d 373 [4th Dept. 2020], lv denied 35 N.Y.3d 1044, 127 N.Y.S.3d 860, 151 N.E.3d 541 [2020];  People v. Hamlet, 227 A.D.2d 203, 204, 642 N.Y.S.2d 254 [1st Dept. 1996], lv denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247 [1996]), and we decline to consider this unpreserved argument in the interest of justice.  We also note that there is nothing in the record to suggest that the court was inclined to impose a lesser sentence (see generally People v. Young, 102 A.D.3d 1061, 1061, 958 N.Y.S.2d 804 [3d Dept. 2013]).

We perceive no basis to reduce defendant's sentence.