PEOPLE v. BERNIER (1997)

Judgment, Supreme Court, New York County (Allen Alpert, J., at hearings;  Bruce Allen, J., at jury trial and sentence), rendered March 7, 1995, convicting defendant Manfred Bernier of two counts of robbery in the first degree and one count each of robbery in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him to two terms of 11 to 25 years, a term of 5 to 15 years, and two terms of 2 1/3 to 7 years, all to run concurrently, unanimously affirmed.

Judgment, same court and Justices, rendered April 21, 1995, convicting defendant Irvine Browne of the same crimes as codefendant Bernier, and sentencing him, as a second felony offender, to four terms of 6 to 12 years and a term of 2 to 4 years, all to run concurrently, unanimously affirmed.

 Both defendants' suppression motions were properly denied in all respects.   The police properly stopped the car in question based upon both reasonable suspicion of its involvement in a robbery as well as upon an actual traffic violation.   Defendants were clearly connected to the robbery by the information provided by one of the victims of the crimes and by a citizen informant who had observed the getaway vehicle, the description of which closely matched defendants' car (see, People v. Sanchez, 216 A.D.2d 207, 629 N.Y.S.2d 215, lv. denied 87 N.Y.2d 850, 638 N.Y.S.2d 609, 661 N.E.2d 1391;  People v. Kadan, 195 A.D.2d 174, 178, 607 N.Y.S.2d 270, lv. denied 83 N.Y.2d 854, 612 N.Y.S.2d 386, 634 N.E.2d 987).   Furthermore, the record supports the hearing court's finding that the police first attempted to stop the car after it committed a traffic violation.   Moreover, the traffic violation reasonably appeared to be evasive action, which heightened the level of suspicion.   Defendants' efforts to flee by driving backwards against the flow of traffic, striking several cars, raised the level of suspicion to probable cause (see, People v. Spearman, 226 A.D.2d 180, 640 N.Y.S.2d 532, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 460, 668 N.E.2d 431).   Accordingly, the various fruits of defendants' lawful arrests were admissible.

 The showup identification of defendant Bernier took place only minutes after the commission of the crimes and in close proximity to the crime scene, and there was no undue suggestiveness (see, People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654).   The four fillers participating in defendant Browne's lineup were sufficiently similar in appearance to Browne (see, People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70), and there is nothing suggestive about sitting at the end of the lineup or in front of an open door (see, People v. Mendez, 208 A.D.2d 358, 617 N.Y.S.2d 5), which positions Browne himself selected.

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v. Bennette, 56 N.Y.2d 142, 149, 451 N.Y.S.2d 647, 436 N.E.2d 1249).

 Since neither defendant previously requested severance, the issue is unpreserved for appellate review (People v. McGee, 68 N.Y.2d 328, 508 N.Y.S.2d 927, 501 N.E.2d 576), and we decline to review it in the interest of justice.   Were we to review it, we would find it to be without merit (see, People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34).

Since defendant Bernier has not raised his claim of ineffective assistance of counsel in a CPL article 440 motion, strategic explanations of counsel's conduct of the trial are not available (People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486).   A review of the existing record indicates that Bernier received effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We perceive no abuse of sentencing discretion.

We have considered defendants' remaining claims and find them to be without merit.

MEMORANDUM DECISION.