PEOPLE v. BAEZ (2019)

DECISION & ORDER

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of robbery in the first degree from a determinate term of imprisonment of 25 years, to be followed by 5 years of postrelease supervision, to a determinate term of imprisonment of 15 years, to be followed by 5 years of postrelease supervision;  as so modified, the judgment is affirmed.

We agree with the Supreme Court's determination denying that branch of the defendant's omnibus motion which was to suppress identification testimony.  The defendant was identified by the complainant during a showup procedure conducted near the crime scene.  “Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification” (People v. Castro, 149 A.D.3d 862, 863, 52 N.Y.S.3d 385;  see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Lancaster, 166 A.D.3d 807, 87 N.Y.S.3d 232;  People v. Ward, 116 A.D.3d 989, 984 N.Y.S.2d 123;  People v. McKinnon, 78 A.D.3d 864, 911 N.Y.S.2d 404).  Here, the evidence adduced at the suppression hearing established that the showup took place 30 minutes after the crime and eight blocks away from the crime scene (see People v. Slattery, 147 A.D.3d 788, 790, 46 N.Y.S.3d 193;  People v. Williams, 143 A.D.3d 847, 39 N.Y.S.3d 482;  People v. Huerta, 141 A.D.3d 602, 35 N.Y.S.3d 433;  People v. Williams, 284 A.D.2d 420, 726 N.Y.S.2d 293;  People v. Rodney, 237 A.D.2d 541, 655 N.Y.S.2d 577).  Contrary to the defendant's contention, the showup procedure was not rendered unduly suggestive because the complainant knew that the police had a suspect in custody, because the defendant was handcuffed and in the presence of uniformed police officers and police cars (see People v. Williams, 143 A.D.3d at 848, 39 N.Y.S.3d 482;  People v. Gil, 21 A.D.3d 1120, 803 N.Y.S.2d 634), or because the identification was made in the presence of recovered property (see People v. Fox, 11 A.D.3d 709, 784 N.Y.S.2d 565;  People v. Hawkins, 188 A.D.2d 616, 591 N.Y.S.2d 75;  People v. Capehart, 151 A.D.2d 592, 543 N.Y.S.2d 921).

Contrary to the contentions raised by the defendant in his pro se supplemental brief, the police had reasonable suspicion to stop the defendant on the basis of information transmitted over the police radio (see People v. Cruz, 137 A.D.3d 1158, 27 N.Y.S.3d 643;  People v. Lynch, 285 A.D.2d 518, 728 N.Y.S.2d 489).  Reasonable suspicion escalated to probable cause to arrest when the defendant fled from the police officers and physically fought with them (see People v. Cruz, 137 A.D.3d at 1159, 27 N.Y.S.3d 643;  People v. McDonald, 285 A.D.2d 615, 728 N.Y.S.2d 746).  To the extent that the defendant relies on trial testimony suggesting that a police radio communication did not include a description fitting him, trial testimony may not be considered in evaluating a suppression ruling on appeal (see People v. Perez–Rodriguez, 166 A.D.3d 659, 87 N.Y.S.3d 204).

The defendant failed to preserve for appellate review his contention that certain physical evidence should have been suppressed on the ground that the People failed to demonstrate that the items were recovered from him.  The defendant did not raise, at the suppression hearing or during the trial, the specific contention he now raises (see CPL 470.05[2];  People v. Mahoney, 165 A.D.3d 980, 86 N.Y.S.3d 115;  People v. Lassiter, 151 A.D.3d 885, 57 N.Y.S.3d 194;  People v. Pleasant, 146 A.D.3d 985, 46 N.Y.S.3d 643).  In any event, the contention is without merit.  Moreover, the defendant was not deprived of the effective assistance of counsel based on his counsel's failure to raise this specific contention before the hearing court.  “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success” (People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;  see People v. Garris, 99 A.D.3d 1018, 1019, 952 N.Y.S.2d 634;  People v. Plaza, 133 A.D.2d 857, 520 N.Y.S.2d 220).

We agree with the Supreme Court's determination declining to preclude testimony or deliver an adverse inference charge with regard to personal property that the police had returned to the complainant in violation of Penal Law § 450.10(1) (see Penal Law § 450.10;  People v. Reyes, 27 A.D.3d 584, 810 N.Y.S.2d 371;  People v. Harris, 23 A.D.3d 580, 581, 806 N.Y.S.2d 637;  People v. McDowell, 264 A.D.2d 858, 696 N.Y.S.2d 465;  People v. Siriani, 216 A.D.2d 595, 628 N.Y.S.2d 570).  No adverse inference charge was warranted, because the People demonstrated that the statutory violation had not caused the defendant prejudice, and the defendant failed to show that the statutory violation had caused him such undue prejudice as to warrant the preclusion of testimony (see Penal Law § 450.10[10];  People v. Reyes, 27 A.D.3d 584, 810 N.Y.S.2d 371;  People v. Harris, 23 A.D.3d at 581, 806 N.Y.S.2d 637).

The defendant's contention, raised in his pro se supplemental brief, that his due process right to a fair trial was violated by alleged prosecutorial misconduct during summation is unpreserved for appellate review (see CPL 470.05[2]).  The defendant failed to object to the prosecutor's challenged comments during the summation, request curative instructions, or timely move for a mistrial (see People v. Williams, 168 A.D.3d 1108, 90 N.Y.S.3d 901;  People v. Garguilio, 57 A.D.3d 797, 870 N.Y.S.2d 380;  People v. Sepulveda, 52 A.D.3d 539, 859 N.Y.S.2d 475;  People v. Hollenquest, 48 A.D.3d 592, 849 N.Y.S.2d 899;  People v. Kirby, 34 A.D.3d 695, 824 N.Y.S.2d 419).  In any event, the challenged remarks do not warrant reversal.

The defendant failed to preserve for appellate review his contention, raised in his pro se supplemental brief, that the prosecutor committed misconduct by failing to correct a portion of a witness's testimony that was purportedly false (see People v. Phipps, 168 A.D.3d 881, 91 N.Y.S.3d 466;  People v. Ragen, 140 A.D.3d 1092, 33 N.Y.S.3d 739;  People v. Hatcher, 130 A.D.3d 648, 13 N.Y.S.3d 459).  In any event, the contention is without merit (see People v. Wallender, 27 A.D.3d 955, 959, 812 N.Y.S.2d 157;  People v. Mazyck, 3 A.D.3d 583, 770 N.Y.S.2d 656;  People v. Thomas, 226 A.D.2d 484, 641 N.Y.S.2d 48).

The sentence imposed was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

SCHEINKMAN, P.J., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.