THE PEOPLE OF THE STATE OF NEW YORK v. ANDY SERRANO (2026)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Elizabeth G. Caldwell of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Brent E. Yarnell of counsel), for respondent.

Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered May 5, 2017, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

The court properly denied defendant's motion to dismiss the indictment based on the 25–month preindictment delay as time-barred, since the motion was filed more than 45 days after his arraignment (see CPL 255.20[1], [3];  People v. Chaparro, 303 A.D.2d 277, 277 [1st Dept 2003], lv denied 100 N.Y.2d 537 [2003] ).

In any event, the court properly denied the motion on the merits.  The two-year delay between arrest and indictment, while “substantial,” was not “so egregious as to warrant dismissal regardless of specific prejudice” (People v. Delgado, 161 AD3d 528, 529 [1st Dept 2018], lv denied 31 NY3d 1146 [2018];  see also People v. Tarranovich, 37 N.Y.2d 442, 445 [1975] ).  Much of the delay was attributable to federal proceedings (see People v. Chilli, 227 A.D.2d 103 [1st Dept 1996], lv denied 88 N.Y.2d 981 [1996] ).  For most of the delay, defendant was incarcerated in connection with a separate matter (see People v. Johnson, 39 NY3d 92, 98 [2022] ).

Defendant's claim that his counsel was ineffective for failing to file a timely motion is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by the record and must be raised in a CPL 440.10 motion (see People v. Lashley, 214 AD3d 567 [1st Dept 2023], lv denied 40 NY3d 935 [2023] ).  Insofar as this claim is reviewable, we reject it on the merits.

The court properly denied defendant's motions to suppress the evidence recovered from the phone and the car.  Based on the totality of the circumstances, including defendant's resemblance to the perpetrator in video surveillance and his connection to the getaway vehicle, the police were justified in pursuing defendant when he entered a New York City Housing Authority building with an address different from his known address and fled from the officers (see People v. Perez, 142 AD3d 410, 414 [1st Dept 2016], affd 31 NY3d 964 [2018] ).  Therefore, defendant cannot contest the search of the phone he dropped while fleeing (see People v. Martinez, 80 N.Y.2d 444, 448–449 [1992] ).  Moreover, the police did not illegally search the phone by turning it on and swiping the screen.  Under the plain view doctrine, the screen that appears when a cell phone or smartphone is turned on is admissible evidence and “may be seized without a warrant,” as long as the police are “lawfully in the position” from which the phone “is viewed,” have “lawful access” to it, and the “incriminating nature” of the evidence is “immediately apparent” (People v. Sanders, 26 NY3d 773, 777 [2016];  see Sinclair v. State, 444 Md 16, 41–42 [2015] ).

The court properly denied defendant's motion to controvert the search warrants.  The “affidavit's omissions of facts raising potential issues about some of the identification evidence did not undermine probable cause, which does not require proof beyond a reasonable doubt” (People v. Penn, 164 AD3d 1142, 1143 [1st Dept 2018], lv denied 32 NY3d 1176 [2019] ).

The court also properly denied defendant's motion to suppress the firearm and ammunition recovered at the time of his arrest, along with his confession once in custody.  Defendant failed to establish an expectation of privacy in the purse, which was recovered from the sidewalk next to his friend, a separately indicted defendant (see People v. Milan, 145 AD3d 588, 588 [1st Dept 2016], lv denied 29 NY3d 1034 [2017];  see also People v. Whitfield, 81 N.Y.2d 904, 906 [1993] ).  Defendant's actions—leaving the purse and walking away without taking any precautions—were also consistent with abandonment (People v. Keegan, 213 A.D.2d 282, 282 [1st Dept 1995], lv denied 86 N.Y.2d 737 [1995] ).  Moreover, any error in the admission of any evidence was harmless given the overwhelming evidence of defendant's guilt (People v. Crimmins, 36 N.Y.2d 230 [1975] ).