PEOPLE v. MARTINEZ (2009)

 On appeal from a judgment convicting him, following a jury trial, of two counts of robbery in the first degree (Penal Law § 160.15[2], [4] ) and one count of criminal possession of a weapon in the third degree (§ 265.02 [former (3) ] ), defendant contends that he was denied his right to be present at a pretrial scheduling conference.   We reject that contention.   That conference did not involve “factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position” (People v. Spotford, 85 N.Y.2d 593, 596, 627 N.Y.S.2d 295, 650 N.E.2d 1296), and the contention of defendant that his presence would have affected the outcome of the trial is merely speculative (see People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050, rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229).

 We also reject the contention of defendant that the police lacked probable cause to arrest him.   The record of the suppression hearing establishes that a police officer observed defendant emerge from the area immediately behind the store that had just been robbed, and that defendant matched the description of one of the suspects.   The officer testified that defendant fled from the area when he saw the officer.   It is well settled that “a defendant's flight in response to an approach by the police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion, the necessary predicate for police pursuit” (People v. Sierra, 83 N.Y.2d 928, 929, 615 N.Y.S.2d 310, 638 N.E.2d 955;  see People v. Davis, 48 A.D.3d 1120, 1121-1122, 851 N.Y.S.2d 320, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447;  People v. Nesmith, 289 A.D.2d 1049, 735 N.Y.S.2d 699, lv. denied 97 N.Y.2d 758, 742 N.Y.S.2d 619, 769 N.E.2d 365).   The officer thus was entitled to pursue defendant (see People v. Martinez, 39 A.D.3d 1159, 1160, 834 N.Y.S.2d 794, lv. denied 9 N.Y.3d 867, 840 N.Y.S.2d 896, 872 N.E.2d 1202), and he had probable cause to arrest defendant based on defendant's spontaneous statement that the police did not need to look for the guns used in the robbery because “they were plastic, [and] we broke them up” (see generally People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).   Contrary to defendant's further contention, the sentence is not unduly harsh or severe.

 We reject the contention of defendant in his main and pro se supplemental briefs that he was denied effective assistance of counsel.   To the extent that defendant contends that defense counsel was ineffective for failing to move to suppress certain evidence, defendant “failed to show that a pretrial motion to suppress [that] evidence, if made, would have been successful” (People v. Matthews, 27 A.D.3d 1115, 1116, 811 N.Y.S.2d 514).   To the extent that defendant contends that defense counsel was ineffective for failing to conduct proper cross-examinations of witnesses, to question potential jurors in a sufficient manner and to request a specific jury instruction, defendant failed “ ‘to demonstrate the absence of strategic or other legitimate explanations' for [those] alleged shortcomings” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698) and, absent such a showing, it is presumed that defense counsel acted competently (see People v. Wells, 187 A.D.2d 745, 591 N.Y.S.2d 44, lv. denied 81 N.Y.2d 894, 597 N.Y.S.2d 956, 613 N.E.2d 988;  see generally People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19).

The remaining contentions of defendant in his main and pro se supplemental briefs are not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: