PEOPLE v. SMICKLE (2022)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 5, 2017, convicting defendant, after a jury trial, of two counts each of robbery in the first and second degrees and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 15 years, unanimously affirmed.

The court properly denied defendant's suppression motion.  The police had, at least, reasonable suspicion justifying a gunpoint stop.  The officers received a radio report of a violent crime that had occurred minutes before.  The suspect's description included a nongeneric combination of particular clothing items, and the report stated that the suspect was heading east on 30th Street.  The description was sufficiently specific and accurate because of the close spatial and temporal proximity between the crime and the police encounter with defendant, who met the description and was the only person (meeting the description or otherwise) heading east on 30th Street (see People v. Joyner, 176 A.D.3d 607, 607, 111 N.Y.S.3d 12 [1st Dept. 2019], lv denied 34 N.Y.3d 1129, 118 N.Y.S.3d 550, 141 N.E.3d 506 [2020]).  In addition, a man pointed out defendant to the officers, saying “That's him,” which the man would not have been likely to say unless he was reporting criminality (see id.).

Defendant's claim that his attorney rendered ineffective assistance by failing to move to reopen a suppression hearing based on trial testimony 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 this 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]).  Defendant has not shown that counsel's failure to move to reopen the hearing was objectively unreasonable, that the motion would have been granted, that a reopened hearing was likely to have resulted in suppression of any evidence, or that such suppression would have affected the outcome of the case (see People v. Carver, 27 N.Y.3d 418, 420–421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016]).

We reject defendant's argument that one of his second-degree robbery convictions, requiring proof of physical injury (Penal Law § 160.10[2][a]) was against the weight of the evidence (People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The evidence supported the conclusion that the victim's injury resulted in substantial pain (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007];  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994]).

The ministerial act of giving the deliberating jury, upon their request, the verdict sheet that had been promised to the jury and preapproved by counsel did not implicate the principles of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991).

We perceive no basis for reducing the sentence.