PEOPLE v. EVANS (2006)

 On appeal from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that Supreme Court erred in refusing to suppress his statements to the police and the showup identification by the complainant on the ground that his statements and that identification were the products of an illegal stop not supported by reasonable suspicion.   Defendant failed to preserve his contention for our review (see People v. Green, 10 A.D.3d 664, 781 N.Y.S.2d 700, lv. denied 3 N.Y.3d 757, 788 N.Y.S.2d 673, 821 N.E.2d 978;  People v. Vann, 288 A.D.2d 876, 732 N.Y.S.2d 615, lv. denied 97 N.Y.2d 709, 739 N.Y.S.2d 111, 765 N.E.2d 314) and, in any event, it is lacking in merit.  “[T]he police had reasonable suspicion to stop and detain [defendant] for a showup identification procedure based on the totality of the circumstances, including ‘a radio transmission providing a general description of the perpetrator[s] of [the] crime ․[,] the ․ proximity of the defendant to the site of the crime, the brief period of time between the crime and the discovery of the defendant near the location of the crime, and the [officer's] observation of the defendant, who matched the radio-transmitted description’ ” (People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358, quoting People v. Lynch, 285 A.D.2d 518, 519, 728 N.Y.S.2d 489, lv. denied 96 N.Y.2d 940, 733 N.Y.S.2d 380, 759 N.E.2d 379, cert. denied 535 U.S. 1081, 122 S.Ct. 1968, 152 L.Ed.2d 1027;  see People v. Wilson, 225 A.D.2d 568, 638 N.Y.S.2d 769, lv. denied 88 N.Y.2d 997, 649 N.Y.S.2d 404, 672 N.E.2d 630).   We reject defendant's further contention that defense counsel's failure to challenge the legality of the stop constitutes ineffective assistance of counsel (see People v. Miller, 228 A.D.2d 979, 980, 645 N.Y.S.2d 119, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623).   The court properly permitted testimony with respect to the 75-year-old complainant's out-of-court identification of defendant, where the complainant identified defendant as one of the burglars at the showup but was unable to identify him at trial (see CPL 60.25;  People v. Ortiz, 253 A.D.2d 710, 680 N.Y.S.2d 192, lv. denied 92 N.Y.2d 951, 681 N.Y.S.2d 481, 704 N.E.2d 234). The court also properly refused to suppress the statement of defendant to the police on the ground that he was under the influence of crack cocaine and thus allegedly was incapable of voluntarily waiving his Miranda rights (see People v. Carpenter, 13 A.D.3d 1193, 786 N.Y.S.2d 683, lv. denied 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88;  People v. Gadson, 239 A.D.2d 924, 661 N.Y.S.2d 803, lv. denied 90 N.Y.2d 905, 663 N.Y.S.2d 517, 686 N.E.2d 229).

Defendant failed to preserve for our review his contention with respect to the accuracy of the CPL 400.16 statement (see generally People v. Johnson, 13 A.D.3d 555, 787 N.Y.S.2d 370, lv. denied 4 N.Y.3d 761, 764, 792 N.Y.S.2d 5, 8, 825 N.E.2d 137, 140, 4 N.Y.3d 852, 854, 797 N.Y.S.2d 426, 428, 830 N.E.2d 325, 327), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: