The People, etc., respondent, v. Eric Wellington, appellant. (2011)

Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Eric Wellington, appellant.

2009–00585 (Ind.No. 11291 /06)

Decided: May 10, 2011

MARK C. DILLON, J.P. ANITA R. FLORIO RUTH C. BALKIN RANDALL T. ENG, JJ.

Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Katherine M. Weiss of counsel), for respondent. The defendant's contention in his pro se supplemental brief, in effect, that the Supreme Court should have reopened the suppression hearing based on certain trial evidence, is unpreserved for appellate review, since he did not request this relief before the Supreme Court (see CPL 470.05[2];  People v Riley, 79 AD3d 911, 912;  People v Clanton, 69 AD3d 754;  People v Hossain, 298 A.D.2d 599, 600).   Having failed to move to reopen the hearing, the defendant may not rely upon trial evidence to challenge the suppression ruling (see People v Riley, 79 AD3d at 912;  People v Fleming, 65 AD3d 702, 703;  People v Rice, 39 AD3d 567, 568).   Moreover, “the propriety of the denial of the defendant's suppression motion must be determined based upon the evidence before the suppression court” (People v Fleming, 65 AD3d at 703–704;  see People v Gonzalez, 55 N.Y.2d 720, 722,cert. denied456 U.S. 1010).   Here, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the showup identification, the lineup identification, and his statement to police on the ground that the initial stop and detention were unlawful.  “Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person” (People v Hollman, 79 N.Y.2d 181, 185;  see People v Hicks, 68 N.Y.2d 234, 242;  People v Mais, 71 AD3d 1163, 1164;  People v Hines, 46 AD3d 912, 913).   The Supreme Court properly determined that the police had reasonable suspicion to stop and detain the defendant for a showup identification based upon the defendant's appearance, which matched the description of the perpetrator as broadcast over the police radio, and the police officers' observations of the defendant walking away from the scene of the crime shortly after the shooting was reported to have occurred (see People v Hicks, 78 AD3d 1075, 1075–1076;  People v Mais, 71 AD3d at 1164;  People v Hines, 46 AD3d at 913;  People v Quinones, 45 AD3d 874,affd12 NY3d 116;  People v Green, 10 AD3d 664).   Furthermore, based on the report that shots had been fired at the scene, “the police had a reasonable basis for believing defendant to be armed, and they were justified in approaching him with their guns drawn” (People v Brown, 127 A.D.2d 674, 674;  see People v Chestnut, 51 N.Y.2d 14, 21,cert. denied449 U.S. 1018;  People v Sledge, 225 A.D.2d 711). The defendant's contention in his pro se supplemental brief that he was deprived of the effective assistance of counsel is based on matter dehors the record and may not be reviewed on direct appeal (see People v Rivera, 71 N.Y.2d 705, 709;  People v Redmon, 81 AD3d 752, 753;  People v Johnson, 59 AD3d 738).