PEOPLE v. SIMMONS (2002)

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered May 2, 2000, convicting him of burglary in the third degree and petit larceny, upon his plea of guilty, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

When the police initially approached the defendant, he and two others were standing outside of a closed convenience store at 12:30 A.M. in a torrential rainstorm, a short distance from a store that had been burglarized about one hour earlier.   Under the facts of this case, the police acted properly in initially approaching the defendant (see People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204;  People v. De Bour, 40 N.Y.2d 210, 213, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   Moreover, the hearing court correctly denied those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials on the ground that the police violated his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108-109, 112-113, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172).

There is no merit to the defendant's claims, to the extent they are reviewable on this record, of ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  Matter of Jeffrey V., 82 N.Y.2d 121, 126-127, 603 N.Y.S.2d 800, 623 N.E.2d 1150;  People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834).

The defendant's contention that his sentencing as a second felony offender violated his constitutional rights to notice and a jury trial pursuant to Apprendi v. New Jersey (530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435) is without merit (see People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160).   Furthermore, the defendant's sentence was not excessive (see People v. Reyes, 247 A.D.2d 639, 669 N.Y.S.2d 238;  People v. Williams, 189 A.D.2d 910, 911, 592 N.Y.S.2d 471;  People v. Kazepis, 101 A.D.2d 816, 817, 475 N.Y.S.2d 351).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.