PEOPLE v. GORDON (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M. Harrington, J.), rendered July 13, 2018, convicting him of attempted assault in the first degree and criminal possession of a weapon in second degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial (Martin P. Murphy, J.), without a hearing, of that branch of the defendant's motion which was pursuant to CPL 710.20(7) to suppress evidence of law enforcement officials' observations of him at the time of his arrest processing.

ORDERED that the judgment is affirmed.

The defendant was convicted, after a jury trial, of attempted assault in the first degree and criminal possession of a weapon in the second degree.  The People presented evidence at trial that, following an earlier altercation in which the complainant and the defendant punched one another, the defendant obtained a firearm and shot the complainant in the back in the middle of a street in Brooklyn.

Before trial, the defendant moved pursuant to CPL 710.20(7) to suppress (1) evidence of the observations of the police officers who arrested him, namely that he refused to provide pedigree information at the time of his arrest processing, and (2) evidence of a lineup identification that occurred immediately following his arrest.  In an order dated November 3, 2017, the Supreme Court determined that police officers had ascertained the defendant's location for arrest by the unauthorized use of a cell site simulator in violation of the defendant's constitutional rights.  The court, therefore, granted that branch of the defendant's motion which was to suppress the lineup identification evidence.  Notwithstanding that determination, the court inexplicably denied that branch of the motion which was pursuant to CPL 710.20(7) to suppress evidence of the police officers' observations of the defendant at the time of his arrest processing.  Under the circumstances of this case, the court should have granted that branch of the defendant's motion (see People v. Jones, 164 A.D.3d 1363, 1367, 85 N.Y.S.3d 75;  see generally Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441).  The error, however, was harmless beyond a reasonable doubt, as the evidence of the defendant's guilt, which included video recordings of the shooting, as well as eyewitness identification of the defendant, was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237, 240–241, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's contention that the Supreme Court erred in permitting the admission of the complainant's grand jury testimony is without merit.  The evidence presented at the Sirois hearing (see People v. Sirois, 92 A.D.2d 618, 459 N.Y.S.2d 813;  Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591), and the inferences that logically flow therefrom, were sufficient to support the court's determination, under the clear and convincing evidence standard, that the defendant either was responsible for or had acquiesced in the conduct that rendered the complainant unavailable for trial (see People v. Smart, 23 N.Y.3d 213, 220, 989 N.Y.S.2d 631, 12 N.E.3d 1061;  People v. Geraci, 85 N.Y.2d 359, 369, 625 N.Y.S.2d 469, 649 N.E.2d 817).  Thus, the People were properly allowed to introduce the complainant's grand jury testimony as part of their direct case (see People v. Thomas, 146 A.D.3d 991, 994, 46 N.Y.S.3d 130).

The defendant's contention that Penal Law § 265.03 is unconstitutional is unpreserved for appellate review (see People v. Cabrera, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968), and we decline to reach it in the exercise of our interest of justice jurisdiction.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

DUFFY, J.P., BRATHWAITE NELSON, CHAMBERS and WARHIT, JJ., concur.