PEOPLE v. DAVIS (2020)

Judgment, Supreme Court, Bronx County (Ethan Greenberg, J.), rendered January 12, 2016, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of 25 years to life and 10 years, unanimously affirmed.

The court properly denied defendant's motion to suppress his postarrest statements.  The police had probable cause to arrest defendant based on a codefendant's statement that possessed ample indicia of reliability, in that it was generally against the codefendant's penal interest and was corroborated in numerous significant details by police investigation (see People v. Berzups, 49 N.Y.2d 417, 427, 426 N.Y.S.2d 253, 402 N.E.2d 1155 [1980]);  People v. Daily, 287 A.D.2d 293, 731 N.Y.S.2d 357 [1st Dept. 2001], lv denied 97 N.Y.2d 680, 738 N.Y.S.2d 295, 764 N.E.2d 399 [2001]).  We need not decide whether the police needed a warrant for pinging (electronically locating) defendant's phone, which led to his apprehension, because the record supports each of the hearing court's alternative bases for denying suppression, that is, that the warrantless pinging was justified by exigent circumstances (see People v. Lamb, 164 A.D.3d 1470, 1471, 83 N.Y.S.3d 219 [2d Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 216, 122 N.E.3d 1129 [2019]), and that defendant's statements were sufficiently attenuated from any preceding illegality (see People v. Bradford, 15 N.Y.3d 329, 333–335, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010]).

Defendant's contention that his attorney was ineffective for failing to move to reopen the suppression hearing based on new information is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982]).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).

The court lawfully imposed consecutive sentences for murder and weapon possession, because the evidence established that defendant completed the weapon possession crime before forming the intent to use the weapon in the robbery that resulted in the victim's death (see People v. Brown, 21 N.Y.3d 739, 752, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013]).  We perceive no basis for reducing the sentence.