PEOPLE v. MCKEE (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him after a jury trial of robbery in the first degree (Penal Law § 160.15[1]), assault in the first degree (§ 120.10[4] ), assault in the second degree (§ 120.05[12] ), criminal possession of stolen property in the fourth degree (§ 165.45[2] ), and resisting arrest (§ 205.30).  We reject defendant's contention that the court erred in refusing to suppress, as the product of an unlawful stop, physical evidence recovered from defendant's person and defendant's statements to the police, among other things.  We conclude that, “[b]ased upon the totality of the circumstances, including the short period of time between the [police dispatch] reporting [the incident] and the arrival of the police officer at the reported location, defendant's presence at that location, and the officer's observations that defendant's physical characteristics and clothing matched the description of the suspect, the officer was justified in forcibly detaining defendant in order to quickly confirm or dispel [his] reasonable suspicion of defendant's [involvement in the reported incident]” (People v. Pruitt, 158 A.D.3d 1138, 1139, 70 N.Y.S.3d 691 [4th Dept. 2018], lv denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018] [internal quotation marks omitted];  see People v. Carson, 122 A.D.3d 1391, 1392, 997 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015];  People v. Evans, 34 A.D.3d 1301, 1302, 825 N.Y.S.2d 617 [4th Dept. 2006], lv denied 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796 [2007]).  Contrary to defendant's contention, the fact that the officer physically restrained defendant before placing him in handcuffs did not elevate the forcible detention into an arrest;  rather, the officer's conduct was justified under the circumstances based on defendant's failure to obey the officer's requests that he stop walking away, the officer's reasonable suspicion that defendant had just been involved in a violent physical altercation, and the officer's concern that defendant was armed (see People v. Arce, 150 A.D.3d 1403, 1404–1405, 55 N.Y.S.3d 465 [3d Dept. 2017], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017];  People v. Boyd, 272 A.D.2d 898, 899, 709 N.Y.S.2d 269 [4th Dept. 2000], lv denied 95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862 [2000];  see generally People v. Balkum, 71 A.D.3d 1594, 1595, 897 N.Y.S.2d 824 [4th Dept. 2010], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010]).

Assuming, arguendo, that the photo array used to identify defendant was unduly suggestive, we conclude that any error in receiving that identification in evidence was harmless (see generally People v. Owens, 74 N.Y.2d 677, 678, 543 N.Y.S.2d 371, 541 N.E.2d 400 [1989]).

We likewise reject defendant's contention that he was deprived of a fair trial based on prosecutorial misconduct during summation.  Many of the comments in question “were within the broad bounds of rhetorical comment permissible during summations ․, and they were either a fair response to defense counsel's summation or fair comment on the evidence” (People v. Ali, 89 A.D.3d 1412, 1414, 932 N.Y.S.2d 277 [4th Dept. 2011], lv denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128 [2012] [internal quotation marks omitted] ).  To the extent that certain comments may have exceeded those bounds, we conclude that the comments “were not so egregious as to deprive defendant of a fair trial” (id. [internal quotation marks omitted] ).  We further conclude that defense counsel's failure to object to certain of those statements did not constitute ineffective assistance of counsel (see People v. Lyon, 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291 [4th Dept. 2010], lv denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010]).

In light of the circumstances of the offense, which involved a violent attack on an elderly citizen, and considering defendant's criminal history, we conclude that the sentence is not unduly harsh or severe (see People v. Whitlatch, 294 A.D.2d 909, 910, 742 N.Y.S.2d 752 [4th Dept. 2002], lv. denied 98 N.Y.2d 703, 747 N.Y.S.2d 422, 776 N.E.2d 11 [2002]).  We have considered defendant's remaining contention and conclude that it does not require reversal or modification of the judgment.