The People, etc., respondent, v. Andy Sukram, appellant. (2026)

Submitted—June 18, 2026

DECISION & ORDER

Q/

Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered December 5, 2023, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and sentencing him, as a second violent felony offender, to concurrent determinate terms of imprisonment of 14 years, to be followed by 3 years of postrelease supervision.  The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification evidence and physical evidence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, (1) by vacating the defendant's adjudication as a second violent felony offender, and substituting therefor an adjudication that the defendant is a second felony drug offender, and (2) by reducing the sentence imposed from concurrent determinate terms of imprisonment of 14 years, to be followed by 3 years of postrelease supervision, to concurrent determinate terms of imprisonment of 8 years, to be followed by 3 years of postrelease supervision;  as so modified, the judgment is affirmed.

The County Court properly determined that the photo array procedure used was not unduly suggestive.  “[U]nduly suggestive pretrial identification procedures violate due process and therefore are not admissible to determine the guilt or innocence of an accused” (People v. Frederick, 211 AD3d 1034, 1035 [internal quotation marks omitted];  see People v. Costan, 197 AD3d 716, 721).  “While the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive” (People v. Castro, 149 AD3d 862, 863 [internal quotation marks omitted];  see People v. Costan, 197 AD3d at 721).  “In determining whether a photographic array was unduly suggestive the hearing court should consider whether there was any substantial likelihood that the defendant would be singled out for identification” (People v. Blount, 176 AD3d 1092, 1093 [internal quotation marks omitted];  see People v. Mata, 174 AD3d 647, 647).  “However, there is no requirement that the other participants in a ․ photo array be identical in appearance to the defendant” (People v. Hanniford, 221 AD3d 913, 913 [alteration and internal quotation marks omitted];  see People v. Bell, 188 AD3d 904, 905).

Here, the participants in the photo array were sufficiently similar to the defendant in appearance such that there was little likelihood that he would be singled out for identification based on particular characteristics (see People v. Hanniford, 221 AD3d at 913).  Although only two of the six individuals in the array had long hair, that difference, when considered together with the other similarities in the photographs, did not render the array unduly suggestive (see People v. Staton, 138 AD3d 1149, 1150, affd 28 NY3d 1160;  People v. Flores, 102 AD3d 707, 707).  The fact that the background of the defendant's photo was darker than the backgrounds of the others—which varied in color and darkness—also did not create a substantial likelihood that the defendant would be singled out for identification (see People v. Lowe, 237 AD3d 1225, 1226–1227;  People v. Sosa–Marquez, 177 AD3d 1003, 1004).

Contrary to the People's assertion, the defendant's contention that the County Court erred in denying that branch of his omnibus motion which was to suppress physical evidence is sufficiently preserved for appellate review.  However, the defendant's contention is mostly without merit, and to the extent that the court erred, the error was harmless.  The complainant's identification of the defendant in a photo array as the person who had robbed her at gunpoint provided probable cause for his arrest (see People v. Ballinger, 62 AD3d 895, 896;  People v. Soberanis, 289 A.D.2d 343, 344).  Suppression of crack cocaine recovered from the defendant's pants was not warranted, as it was recovered during a search incident to a lawful arrest (see People v. Foster, 153 AD3d 853, 854;  People v. Davis, 32 AD3d 445, 445).  The seizure of a scale and cell phones, which were in plain view at the time of the defendant's arrest, from the defendant's vehicle was lawful (see People v. Clark, 194 AD3d 948, 949–950;  People v. Redmond, 41 AD3d 514, 515), and the fact that the vehicle was transported back to police headquarters before the scale and cell phones were retrieved does not affect the validity of the search (see People v. Jackson, 111 A.D.2d 412, 413).  The court's failure to suppress cash recovered from a fanny pack was harmless error because the evidence of the defendant's guilt, without reference to the cash, was overwhelming, and there was no reasonable possibility that such an error contributed to his conviction (see People v. Greenland, 243 AD3d 587, 588;  People v. Gordon, 222 AD3d 994, 995).

The defendant's contention that the People improperly changed their theory of prosecution from that set forth in the indictment is unpreserved for appellate review.  In any event, the contention is without merit.  No new theory was introduced at trial that was inconsistent with that contained in the indictment (see People v. Hidalgo, 144 AD3d 704, 704–705;  People v. Williams, 132 AD3d 785, 786).

The defendant's contention that the dismissal of a robbery charge rendered his arrest unlawful is also unpreserved for appellate review.  In any event, the contention is also without merit (see People v. Argentina, 150 A.D.2d 703, 704;  People v. Molloy, 22 A.D.2d 814, 814, affd 17 N.Y.2d 431).

The defendant's contention that references made at trial regarding the circumstances of his arrest deprived him of a fair trial is largely unpreserved for appellate review.  In any event, any prejudice that might have arisen from the references regarding the circumstances of his arrest was alleviated by the County Court's instructions that the jury not speculate or make an unfavorable inference against the defendant and the court sustaining the defendant's objections to testimony that the officers had probable cause to arrest him (see People v. Davis, 108 A.D.2d 924;  see also People v. Joseph, 145 AD3d 916, 917).

The defendant contends that he was deprived of his right to be present at the Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371).  “A criminal defendant has the right to be present at all material stages of his [or her] trial, including a Sandoval hearing” (People v. Blount, 176 AD3d at 1095 [internal quotation marks omitted];  see People v. Badia, 130 AD3d 744, 746).  Nonetheless, “a presumption of regularity attaches to all judicial proceedings, and it is the defendant who bears the burden of rebutting that presumption” (People v. Blount, 176 AD3d at 1095 [internal quotation marks omitted];  see People v. Badia, 130 AD3d at 746).  On this record, the defendant has failed to rebut the presumption of regularity, inasmuch as he has not demonstrated that he was, in fact, absent from the Sandoval hearing.  Indeed, the record indicates that he was present during the hearing.

The defendant's contention that the County Court should have held a Rodriguez hearing (see People v. Rodriguez, 79 N.Y.2d 445) is unpreserved for appellate review.  In any event, no Rodriguez hearing was required because the defendant's calls from jail were initiated by the defendant and, therefore, did not constitute police-arranged identification procedures susceptible to police suggestion (see People v. King, 178 AD3d 853, 854).  Moreover, the defendant stipulated that the jail calls admitted into evidence were made by him, and his identity on the calls was, thus, not an issue (see People v. Gissendanner, 48 N.Y.2d 543, 552).

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal, which failed to specify any particular error (see People v. McCutchen, 248 AD3d 827, 830;  People v. Robertson, 240 AD3d 617, 618).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342, 349), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence.

The defendant's contention that he was deprived of the right to effective assistance of counsel is without merit.  “New York's constitutional requirement of effective assistance of counsel is met when the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Thompson, 246 AD3d 833, 835 [internal quotation marks omitted];  see People v. Goodluck, 239 AD3d 674, 675).  “The defendant bears the burden of demonstrating the absence of strategic or other legitimate explanations for counsel's alleged shortcomings” (People v. Weaver, 233 AD3d 712, 713 [internal quotation marks omitted];  see People v. Andrews, 226 AD3d 809, 813).  “[T]here can be no denial of effective assistance ․ arising from counsel's failure to make a motion or argument that has little or no chance of success” (People v. Palm, 238 AD3d 787, 789 [internal quotation marks omitted];  see People v. Mendez–Saldivar, 243 AD3d 601, 601).  “[T]he test of counsel's performance is reasonable competence, not perfect representation” (People v. Banyai, 230 AD3d 701, 703 [internal quotation marks omitted];  see People v. Nicholson, 26 NY3d 813, 831).  “Isolated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that the defendant did not receive a fair trial” (People v. Weaver, 233 AD3d at 713 [alteration and internal quotation marks omitted];  see People v. Guerra, 231 AD3d 852, 853, affd _ NY3d _, 2026 N.Y. Slip Op 03905).  Here, the defendant failed to show that his counsel was ineffective.

With respect to a predicate felony statement, although the County Court did not specifically ask the defendant if he wished to controvert the allegations in the predicate felony statement (see CPL 400.15[3] ), the failure to do so was harmless, since the defendant admitted that he was the person convicted of the predicate felony, there was no indication that he intended to claim that his prior conviction was unconstitutionally obtained, and he has not alleged any grounds to controvert the predicate felony statement (see People v. Stevens, 171 AD3d 1106, 1109;  People v. Jackson, 114 AD3d 807, 809).

As the People correctly concede, the County Court should have adjudicated the defendant a second felony drug offender, not a second violent felony offender, since the defendant's conviction here was for a nonviolent felony (Penal Law §§ 70.02[1], 70.04[1], 70.70[1][b], 220.16).

The sentence imposed was excessive to the extent indicated herein.

DUFFY, J.P., FORD, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court