THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GERREN WHORLEY DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ), defendant contends that Supreme Court erred in determining that the police had the necessary reasonable suspicion to detain him and to frisk him for weapons because the information provided to them by the citizen informant was unreliable.   The citizen informant, a bouncer at an adjacent bar, had informed the police that he felt a gun on defendant's person.   Inasmuch as “that contention was not raised in defendant's pretrial omnibus motion or at the suppression hearing, it has not been preserved for our review” (People v. King, 284 A.D.2d 941, 941, lv denied 96 N.Y.2d 920;  see People v. Turner, 96 AD3d 1392, 1393, lv denied 19 NY3d 1002).   In any event, that contention lacks merit.   The information provided by the bouncer, an identified citizen, was based upon his personal knowledge and accused defendant of committing a specific crime, and thus it provided the officers with at least a reasonable suspicion that a crime had been, or was being, committed, thus authorizing the detention (see People v. Brito, 59 AD3d 1000, 1000, lv denied 12 NY3d 814;  see generally People v. De Bour, 40 N.Y.2d 210, 223;  People v. Cantor, 36 N.Y.2d 106, 112–113).   In addition, that information was coupled with the police officer's confirmatory observations of certain details of the information provided by the citizen informant, which further provided at least reasonable suspicion to detain defendant (see generally People v. Argyris, _ NY3d _, _ [Nov. 25, 2014];  People v. Bell, 5 AD3d 858, 860;  People v. Powell, 234 A.D.2d 397, 398, lv denied 89 N.Y.2d 988).   Inasmuch as the information provided to the officers indicated that defendant possessed a gun, and “[a] corollary of the statutory right to temporarily detain for questioning is the authority to frisk [an individual] if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed” (De Bour, 40 N.Y.2d at 223), the officers were authorized to frisk defendant once they detained him.

To the extent that defendant contends that he was denied effective assistance of counsel because of advice he received from his attorney, that contention “is based on information outside the record before us and is therefore properly raised by a CPL article 440 motion” (People v. James, 269 A.D.2d 845, 846).   To the extent that defendant's ineffective assistance of counsel claim otherwise survives his plea of guilty (see People v. Garner, 86 AD3d 955, 956), we conclude that it lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404).   We note in particular that, although defendant contends that he was denied effective assistance of counsel because defense counsel was operating under a conflict of interest, defendant has failed to demonstrate that any alleged conflict of interest affected “the conduct of his defense ․, or that the conflict operated on [defense counsel's] representation” of defendant (People v. Konstantinides, 14 NY3d 1, 10;  see People v. Ennis, 11 NY3d 403, 410, cert denied 556 U.S. 1240).

Contrary to defendant's contention, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court